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Deprivation of Liberty Safeguards

• P v Cheshire West and Chester Council
• P & Q, the Official Solicitor v Surrey County Council 2014 UKSC

On 19 March 2014 the Supreme Court ruled unanimously that P, a profoundly disabled man was deprived of his liberty by virtue of the complete and effective control exercised over his life by those looking after him. The Supreme Court rejected the decision and the factors that were introduced when the case was heard by the Appeal Court and re-affirmed the original decision that had been previously reached in the Court of Protection.

In reaching this decision the Supreme Court identified that to determine whether a person (without the mental capacity to consent to the arrangements) is being deprived of their liberty, the following 'acid test' should be applied:

Is the person subject to continuous supervision and control?

• All of these factors are necessary. Legal advice should be sought if intensive levels of support are being provided to any person as part of a package of care or treatment.

Is the person free to leave?

• The focus is not on the person’s ability to express a desire to leave, but on what those with control over their care arrangements would do if they sought to leave.

In all cases, the following are not relevant to the application of the test:

1. The person’s compliance or lack of objection;
2. The relative normality of the placement (whatever the comparison made)
3. The reason or purpose behind a particular placement.

This ruling has increased the number of people who now fall within the scope of what constitutes a deprivation of liberty and where this occurs authorisation is required.

This test is applicable when the person is in:

• A care home or hospital, authorisation is able to be provided through the Deprivation of Liberty Safeguards – DOLS.
• An environment other than a care home or hospital, then an application would need to be made by the person’s allocated worker through the Court of Protection.

For further information please view the Department of Health guidance.

DOLS Case studies

Please note that the Mental Capacity (Amendment) Act 2019 will replace the Deprivation of Liberty Safeguards in October 2020. 

Walsall Council employees:

please view further information and guidance on the Mental Capacity Act and DoLS on Inside Walsall - click here

 

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