Understanding the Legal Aspects of Deprivation of Liberty

Deprivation of Liberty Safeguards (DoLS) is a procedure designed to protect a person’s rights if the care or treatment that they receive in a hospital or care home means they are, or may become, deprived of their liberty, and they lack mental capacity to consent to those arrangements. Where such care may amount to a ‘deprivation of liberty’ the arrangements are independently assessed to ensure that they are in the best interests of the individual concerned. 

Care homes and hospitals can legally restrict the freedom of people who cannot make decisions for themselves to provide needed care and treatment. However, care homes and hospitals must ensure that they are following the correct deprivation of liberty safeguarding regulations. Established to safeguard the rights of those with mental health conditions, including dementia, these DoL safeguards outline specific criteria and procedures for authorising such deprivations, emphasising the paramount importance of an individual’s best interests. Under UK law, deprivation of liberty is heavily regulated, primarily to protect vulnerable individuals, such as those with mental health conditions or lacking mental capacity, from unjust or inappropriate restrictions.

The DoLS assessment is a safeguard as it makes sure that the care being given is in the person’s best interests. An assessment will decide whether the deprivation of liberty is allowed to happen or not. Official statistics from NHS Digital show that there were an estimated 332,455 applications for Deprivation of Liberty Safeguards (DoLS) received during 2023-24; this is an increase of 11% on the previous year. Of these 332,455 DoLS applications in 2023-24, 58% had an urgent authorisation attached to the applications. 

There were an estimated 145,945 fully assessed applications for DoLS received during 2023-24, with 3% of all completed and fully assessed applications not granted. The number of partially assessed applications in 2023-24 was estimated to be 15,270. The reported number of applications not completed was an estimated 123,790 and the reported number of cases that were closed without any assessments as at year end was an estimated 162,655. 

According to Ministry of Justice (MoJ) figures in the first quarter of this year (January to March 2024), deprivation of liberty applications were up 30% on the same period a year earlier. With this increase in the number of applications, it is vital that all those working in health and social care understand all the reasons why this whole process is so important, and recognise the legal framework that underpins the process. In this article we explore the legal aspects of deprivation of liberty, including key legislation, the process for authorising deprivation, and the rights of individuals affected.

Defining Deprivation of Liberty

In the UK, deprivation of liberty is defined as a situation where an individual is under continuous supervision and control and is not free to leave, particularly when they lack the capacity to consent to their situation. Under the Mental Capacity Act 2005, a deprivation of liberty is lawful only when it meets the following conditions:

• The person is aged 18 years or older
• The person lacks the mental capacity to make decisions regarding their care or treatment
• The deprivation is in the person’s best interests
• The deprivation is necessary to prevent harm and is the least restrictive option available

The term ‘deprivation of liberty’ comes from Article 5 of the European Convention on Human Rights (ECHR), which provides that everyone, of whatever age, has the right to liberty. The ECHR was incorporated into UK national law by the Human Rights Act 1998 (HRA). 

Deprivations of liberty can occur in a range of settings, including:

• A care home (nursing or residential)
• A hospital, which includes NHS hospitals and treatment by the independent sector / private hospitals, but also transfer to hospital in the first instance by ambulance
• A home owned by the person
• A home rented by the person, including supported living or extra care
• A shared lives scheme
• A day centre or other place where the person receives care or treatment away from their home

Even though deprivations of liberty can occur in any setting, the Deprivation of Liberty Safeguards (DoLS) only applies to those that take place in a care home or hospital; for more complex or non-standard settings, the process must be authorised by the Court of Protection. 

A person’s liberty can only be taken away from them in very specific situations; for example, deprivation of liberty may happen if a person needs to go into a care home or hospital to get care or treatment but they don’t have the capacity to make decisions about this themselves. How deprivation of liberty happens will depend on their circumstances. 

Being deprived of liberty means that the person is not free to go anywhere without permission or close supervision. It also means that they are continuously supervised. A deprivation of liberty should only be used if it is the least restrictive way of keeping a person safe, or making sure that they have the right medical treatment.

Restricting liberty and depriving liberty are two different things and relate to the degree of limitation imposed on an individual’s freedom, although both terms are used in the context of a person who lacks mental capacity. 

The key features of deprivation of liberty are that the person is under continuous supervision and control, that they are not free to leave their environment, even if they appear to be compliant, or do not attempt to leave, and that the person lacks the mental capacity to consent to the care arrangements that result in this deprivation. 

Restriction of liberty places less severe limitations on a person’s freedom. It does not amount to total control or constant supervision, and does not require the same level of legal authorisation. The key features of restriction of liberty are that the person’s movement or autonomy is limited but they are not under continuous supervision or control, the person may be allowed to leave the environment/setting under certain conditions, or with assistance, and because the restriction does not amount to a complete loss of freedom or detention, it does not necessarily require formal legal authorisation unless it becomes more severe. Here are examples of both:

• When a person with dementia who is living in a care home is prevented from leaving and is continuously supervised to ensure their safety because they lack the capacity to consent to their care arrangements, this would be considered a deprivation of liberty.
• Whereas, when a person in a care home is encouraged to stay in certain areas for their safety but is generally permitted to move around other areas within the setting and is not under constant supervision, this would be considered a restriction of liberty.

Restriction of liberty involves partial limitations on movement or decision-making, does not require formal legal authorisation to implement and places fewer restrictions on a person’s liberty. Whereas due to its more intrusive nature and impact on a person’s legal right to liberty, deprivation of liberty requires legal authorisation, and involves continuous supervision and control to restrict a person’s freedom. 

The Cheshire West Judgment (2014) by the UK Supreme Court set the key criteria, often referred to as the ‘acid test’, for determining whether an individual is deprived of their liberty:

• Is the person under continuous supervision and control?
• Is the person not free to leave?

If both of these conditions are met, then the person is considered to be deprived of their liberty, regardless of their compliance or willingness to remain in the setting. If the criteria are not fully met, the situation may instead constitute a restriction of liberty.

In UK law, deprivation of liberty is closely tied to whether the person can consent to the restrictions placed on their freedom. If a person lacks the mental capacity to give valid consent, legal mechanisms must be used to authorise any deprivation of liberty. A deprivation of liberty can only occur if a person does not consent to the conditions under which they are being restricted, and this lack of consent is closely tied to their mental capacity.

Under the Mental Capacity Act 2005 (MCA), mental capacity refers to the ability to understand, retain and weigh up relevant information to make decisions and to communicate those decisions. When a person lacks mental capacity and cannot make an informed decision about their care, even if they appear compliant, or do not explicitly refuse, they cannot consent, which triggers the need for legal authorisation to ensure that any deprivation of liberty is lawful.

Key Legislation Governing Deprivation of Liberty

The European Convention on Human Rights (ECHR)

As previously stated, the term ‘deprivation of liberty’ comes from Article 5 of the European Convention on Human Rights (ECHR), which provides that everyone, of whatever age, has the right to liberty. The Human Rights Act 1998 (HRA) incorporates the Convention rights into UK law and the HRA applies to everyone equally. 

However, a person’s right to liberty as set out in Article 5 of the ECHR and the UK HRA can be restricted if the person is detained under the Mental Health Act 2005, making this a non-absolute right. This right can only be breached, however, if there is a lawful reason, as provided in Article 5(1). In health and social care settings, what is relied upon is Article 5(1)(e) “unsound mind”, which includes mental illness, the lack of mental capacity and similar, and requires that procedural safeguards are in place.

The Mental Capacity Act 2005 (UK)

The law governing the application for Deprivation of Liberty Safeguards (DoLS) is the Mental Capacity Act 2005 (MCA). Anyone with responsibility for applying the safeguards must have regard to the Deprivation of Liberty Safeguards Code of Practice (the Code), which supplements the Mental Capacity Act 2005 Code of Practice.

The Deprivation of Liberty Safeguards (DoLS) introduced in 2007 are part of the MCA, and aim to protect people who are deprived of their liberty in care homes and hospitals. These safeguards ensure that the deprivation is lawful, necessary and proportionate.

There are five principles underpinning the Mental Capacity Act, which inform the approach required if someone else must make a decision on a person’s behalf if they lack mental capacity, including under DoLS. They are:

• Presumption of capacity – a person has the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise.
• Support to make their own decisions – all practicable steps must be taken to help a person to make their own decision before anyone concludes that they are unable to do so.
• Eccentric or unwise decisions – a person is not to be treated as being unable to make a decision simply because the decision they make is seen as unwise.
• Best interests – any decision made, or action taken, on a person’s behalf if they lack capacity must be made in their best interests.
• Least restrictive intervention – anyone making a decision on a person’s behalf must consider all effective alternatives and choose the less restrictive of the person’s basic rights and freedoms in relation to the risks involved.

Anyone considering depriving someone of liberty must be skilled in balancing their right to autonomy and self-determination with protecting them from harm. They should respond proportionately, based on the Act’s principles, and must abide by the DoLS Code of Practice. The safeguards involve independent assessments, the appointment of a representative for the person, and the right to challenge the deprivation in court. The person can apply to the Court of Protection to review the situation, and the court may order changes to the care plan, or end the deprivation if it is found to be unlawful.

Mental Health Act 1983

Under the Mental Health Act 1983, individuals can be detained for treatment of a mental disorder, which constitutes a deprivation of liberty. 

The Care Act 2014 (UK)

The Care Act 2014 governs the provision of social care services in the UK. The Act primarily deals with adult social care, although it has indirect implications for deprivation of liberty, particularly in terms of how care is arranged, delivered and monitored. The Act emphasises the importance of ensuring that individuals receive care and support in a way that maximises their independence and autonomy. By prioritising the well-being of individuals, the Care Act 2014 encourages local authorities to provide care that is the least restrictive option.

This means that when local authorities are involved in arranging care for someone, they must consider ways to support the person without unnecessarily restricting their freedom. This includes protecting vulnerable individuals from harm while still promoting their independence and freedom.

However, local authorities also have a duty under the Act to safeguard adults. Sometimes safeguarding actions involve imposing restrictions on a person’s movements or actions to prevent harm, but under legislation these must be balanced with the individual’s rights. This is why the Care Act works alongside frameworks such as the Deprivation of Liberty Safeguards (DoLS) or the Court of Protection to ensure that any restrictions that might need to be imposed are lawful and proportionate.

The Liberty Protection Safeguards (LPS)

The Law Commission published a report on the Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards (DoLS), containing a number of recommendations as to how the law around Deprivation of Liberty Safeguards (DoLS) should operate. The Law Commission recommended a replacement scheme, which is being called the Liberty Protection Safeguards (LPS), which required an amendment to the Mental Capacity Act 2005. 

The LPS scheme was introduced through the Mental Capacity (Amendment) Act in 2019 as the planned replacement system for the Deprivation of Liberty Safeguards (DoLS). However, the Mental Capacity (Amendment) Act 2019 was passed in May 2019 and was originally due to be implemented in October 2020 but has not yet been commenced. The government had hoped to fully implement the LPS by April 2022 but, due mainly to the impact of the Covid-19 pandemic, its implementation was delayed. On 5 April 2023 the Department of Health and Social Care announced the implementation of the Liberty Protection Safeguards (LPS), the Mental Capacity (Amendment) Act 2019, will be delayed “beyond the life of this Parliament”, therefore likely beyond 2024.

The aim of the new LPS was to give a more efficient framework to authorise deprivations of liberty and ensure those affected have their Article 5 (right to liberty) of the ECHR properly protected. It was intended to provide protection for anyone aged 16 and over who needs to be deprived of their liberty in order to receive their care or treatment and who lacks the mental capacity to consent to their arrangements. LPS would have applied to all settings, including those outside of the scope of DoLS, such as supported accommodation and in people’s homes; a LPS authorisation could include multiple settings, whereas DoLS apply to a specific location and cannot be transferred.

Under the LPS there would have been an extension of rights to an independent mental capacity advocate (IMCA) and non-means tested legal aid for challenging an authorisation where a person was being deprived of their liberty outside of hospitals and care homes. This means those cases will still be without legal aid funding. The policy intention was for LPS practice to become part of mainstream healthcare and social care assessments and planning, including the Care Act 2014 care and support planning. This integration was intended to make the overall process more straightforward for the person and easier for local authorities, by reducing duplication.

The LPS scheme had also been designed to ensure that all cases could be processed in a timely manner, and, therefore, remove the backlogs that have grown under DoLS. As the LPS has not been implemented, the current DoLS framework will continue under the Mental Capacity Act 2005 for the foreseeable future. The effect of the backlog means that individuals are often left without safeguards for an extended period of time and local authorities are not meeting their statutory duties. In 2022-23, the number of applications to deprive a person of their liberty increased to over 300,000, with only 19% of standard applications completed within the statutory 21-day timeframe.

The Process of Authorising Deprivation of Liberty

The Deprivation of Liberty Safeguards (DoLS) can only apply to people who are in a care home or hospital. This includes where there are plans to move a person to a care home or hospital where they may be deprived of their liberty. The care home or hospital is called the managing authority in the DoLS. Where a managing authority thinks it needs to deprive someone of their liberty they have to ask for this to be authorised by a supervisory body, usually the local authority where the person is ordinarily resident. They can do this up to 28 days in advance of when they plan to deprive the person of their liberty.

There are two types of DoLS authorisations, urgent and standard. Urgent DoLS authorisations can last up to 7 days and are initially granted by the hospital or care home where the person is being cared for, known as the managing authority. If needed, urgent authorisations can be extended for a further 7 days. This type of authorisation can be used if a person urgently needs to be deprived of their liberty before they have had a full assessment.

In all other circumstances, the managing authority should request a standard authorisation. The relevant local authority then has 21 days to carry out assessments to ensure that the deprivation of liberty is appropriate. Standard authorisations should be reviewed regularly and can last up to 12 months.

For requesting a standard authorisation, the managing authority must fill out a form which is sent to the supervisory body to decide within 21 days whether the person can be deprived of their liberty. The supervisory body appoints assessors to see if the conditions are met to allow the person to be deprived of their liberty under the safeguards. They include:

• The person is 18 or over 
• The person is suffering from a mental disorder recognised by the Mental Health Act
• The person lacks capacity to decide for themselves about the restrictions which are proposed so they can receive the necessary care and treatment
• The restrictions would deprive the person of their liberty
• The proposed restrictions would be in the person’s best interests
• Whether the person should instead be considered for detention under the Mental Health Act
• There is no valid advance decision to refuse treatment or support that would be overridden by any DoLS process
• Whether a person who holds Lasting Power of Attorney (LPA) for Health and Welfare agrees with a DoLS authorisation (no refusals)

If any of the conditions are not met, deprivation of liberty cannot be authorised. This may mean that the care home or hospital has to change its care plan so that the person can be supported in a less restrictive way. There may also be a need to consider asking the Court of Protection to look at the Deprivation of Liberty, and supervisory bodies must seek legal advice in these cases.

If all conditions are met, the supervisory body must authorise the deprivation of liberty and inform the person and managing authority in writing. It can be authorised for up to one year. The person does not have to be deprived of their liberty for the duration of the authorisation. The restrictions should stop as soon as they are no longer required.

A person may need to be deprived of their liberty before the supervisory body can respond to a request for a standard authorisation. In these situations the managing authority can use an urgent authorisation. Urgent authorisations are granted by the managing authority itself. There is a form that they have to complete and send to the supervisory body. 

The managing authority can deprive a person of their liberty for up to 7 days using an urgent authorisation. It can only be extended for up to a further 7 days if the supervisory body agrees to a request made by the managing authority to do this. When using an urgent authorisation the managing authority must also make a request for a standard authorisation. The managing authority must have a reasonable belief that a standard authorisation would be granted if using an urgent authorisation.

Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person. Their knowledge of the person could mean that deprivation of liberty can be avoided. The managing authority should make a record of their efforts to consult others.

At least two independent assessors, one mental health assessor and one best interests assessor, who must have received training for their role, are involved in the assessment process for a standard authorisation. This is to provide a safeguard in the process; the assessors will stop the deprivation of liberty being authorised if they do not think all the conditions are met. Family, friends and paid carers who know the person well should also be consulted as part of the assessment process.

They may have suggestions about how the person can be supported without having to deprive them of their liberty. Those people who don’t have family or friends who can represent them have a right to the support of an Independent Mental Capacity Advocate (IMCA) during the assessment process.

If standard authorisation is granted the following safeguards are available:

• The person must be appointed a relevant person’s representative as soon as possible. Usually this will be a family member or friend who agrees to take this role. If there is no one willing or able to take this role on an unpaid basis, the supervisory body must pay someone, such as an advocate, to do this.
• The person and their representative can require the authorisation to be reviewed at any time, to see whether the criteria to deprive the person of their liberty are still met, and if so whether any conditions need to change.
• The person and their relevant person’s representative have a right to challenge the deprivation of liberty in the Court of Protection at any time.
• If the person has an unpaid relevant person’s representative, both they and their representative are entitled to the support of an IMCA. It is good practice for supervisory bodies to arrange for an IMCA to explain their role directly to both when a new authorisation has been granted.
• The home or hospital should do all it reasonably can to explain to a detained person and their family what their rights of appeal are and give support.

Carefully and systematically recording how this process was done is an important safeguard, and consequently an important part of the law, good practice and concern for the welfare of others. The managing authority must keep a written record of why it has made the request, and the supervisory body must keep a written record that the request has been made to it. The need to make and keep written records is outlined in the Code of Practice. 

The Court of Protection is the part of the Family Division of the High Court that deals exclusively with Mental Capacity Act cases. A person must apply to the Court of Protection if they want to challenge a standard or urgent authorisation that has deprived someone lacking mental capacity of their liberty. Reasons for this challenge may include:

• The order may not have been authorised properly
• This action is not in the person’s best interests
• The person has the mental capacity to decide their own treatment

The Court must always act in a person’s best interests when it makes these decisions and can make decisions about such things as:

• Whether a Deprivation of Liberty Safeguards (DoLS) authorisation has been granted lawfully, or settling a dispute about the use of the safeguards against a person. This may include authorising a deprivation of liberty where DoLS haven’t been used.
• Whether an action that someone is taking on a person’s behalf is appropriate, when they lack capacity to take it for themselves. The Court can decide whether they think they have capacity to make a particular decision, or whether something is in their best interests.
• Disagreements that cannot be settled in any other way, for example, by using an independent mental capacity advocate (IMCA).
• Situations where a series of decisions, rather than a single decision, need to be made for the person.

Anyone can apply to the Court of Protection, including:

• The person themselves
• Family members
• An attorney, deputy or anyone named in a court order
• Healthcare trusts
• Clinical Commissioning Groups
• Local authorities

Legal aid may be available to pay for a solicitor to act in the Court of Protection when challenging a decision about Deprivation of Liberty Safeguards; however, usually there is a fee to apply to the Court, but in some cases there are exemptions. 

It is possible to challenge a decision from the Court of Protection by applying to the Court of Appeal, but you may need permission for this. You should get legal advice from a solicitor specialising in Court of Protection matters. They can help you decide whether you are likely to get legal aid for your challenge and how likely you are to win your case. 

Implications and Responsibilities for Care Providers

DoLS cover patients in hospitals and people in care homes registered under the Health and Social Care Act 2008, whether placed under public or private arrangements. These settings are under legal responsibilities and have statutory duties to ensure that they adhere to safeguards to ensure that any deprivation of liberty is necessary, proportionate, and in the best interests of the individual and that they are protecting the human rights of the people within their care when applying DoLS. 

The length of any authorisation should be assessed on a case-by-case basis, taking account of the individual’s circumstances. Hospital and care home managers are expected to:

• Help the person concerned and their representative understand what the authorisation means for them and how they can apply to the Court of Protection or request a review.
• Meet any conditions attached to the authorisation.
• Monitor the individual’s circumstances and notify the supervisory authority of changes that require the authorisation to be reviewed.

The supervisory body must also carry out a review if a valid request for review is made. The outcome of the review may be to terminate the authorisation, vary the conditions attached or change the reason recorded that the person meets the criteria for authorisation. The hospital or care home, the person concerned and their representative must be informed of the outcome of a review.

Care providers should note that it is important to notify the CQC of the outcomes or withdrawal of a DoLS or Court of Protection equivalent application. They should also notify the CQC of any changes made to the authorisation conditions.

Managers and staff responsible for applying for deprivation of liberty authorisations must understand fully the principles, policies and procedures of DoLS. As well as providing appropriate and ongoing training and continuous professional development, settings should also work closely with the supervisory body to ensure that up-to-date best practice is being applied. 

It is recommended that deprivation of liberty issues are best addressed through active learning methods. Using these, managers would work through systematically with their staff on a case-by-case basis or on selected examples, the evidence for and against their actions being sufficiently restrictive to deprive a person of their liberty. It is also recommended that managers develop their knowledge in line with the requirements of the Level 5 Diploma in Leading and Managing an Adult Care Service (Mental Capacity Unit (LMAC5C/MC)).

Case Studies and Real-World Examples

Several high-profile Deprivation of Liberty Safeguards (DoLS) cases have gone through the Court of Protection in the UK; the Cheshire West case highlighted earlier in this article is one of the most significant for setting the legal definition of deprivation of liberty. 

There are often intricate and emotional legal considerations involved in determining whether a person is being deprived of their liberty and the Court of Protection plays a crucial role in ensuring that any deprivation of liberty is lawfully authorised, proportionate, and in the person’s best interests.

Case Reference Re X and Others (Deprivation of Liberty) [2014] EWCOP 25 involved a series of individuals (referred to as X and others) who were placed in various settings, including care homes and supported living arrangements, under conditions that may have amounted to deprivation of liberty. This case focused on the process for authorising deprivation of liberty when individuals are placed in settings outside of hospitals and care homes, such as supported living.

This case highlighted the legal challenges associated with DoLS, particularly when individuals are placed in non-institutional settings such as supported living and highlighted the need for a more flexible legal framework to cover deprivations of liberty outside traditional care settings, contributing to the development of the Liberty Protection Safeguards (LPS) described earlier in this article, which was designed to replace DoLS and apply more broadly.

The Future of Deprivation of Liberty Safeguards

Whilst the new LPS framework is intended to address the shortcomings of the current DoLS system, there is to date no indication of if and when the transition might occur. It seems likely that the LPS will not come into effect for at least another few years and there has been no indication that the implementation of LPS will be a parliamentary priority for the new government. 

With the delay to the Liberty Protection Safeguards it is more important than ever to ensure the existing scheme for deprivation of liberty works, including the Deprivation of Liberty Safeguards (DoLS) and the role of the Court of Protection and High Court.

Conclusion

To protect the fundamental human rights of individuals, Deprivation of Liberty Safeguards (DoLS) must operate in a legal context. Deprivation of liberty is an ethically sensitive issue, particularly when dealing with vulnerable individuals who lack capacity. The legal framework encourages careful and well-considered decision-making, ensuring that liberty is only restricted when absolutely necessary and the legal safeguards ensure that decisions are made ethically, prioritising the individual’s welfare and dignity. 

As we have acknowledged in this article, the current DoLS system has deficiencies which the new LPS seeks to rectify. However, without advocacy and lobbying government, the case to prioritise its implementation may not be heard. Various organisations including the Local Government Association (LGA), the British Medical Association (BMA), and Mencap, have urged the government to clarify the timeline and address the uncertainty surrounding the transition from DoLS to LPS.

Websites such as the Local Government Lawyer and the Care Quality Commission (CQC) can help to provide updates and the latest legal developments on DoLS.