What is a deprivation of liberty?
Under The Human Rights Act, it is against a person’s human rights to deprive them of their liberty (Article 5) except in certain permitted circumstances and if a certain procedure is followed. An example of this is the power for police to detain people who have been arrested for a limited period of time in order to investigate the crime.
Sometimes, it may be necessary to restrict the movement of someone who is elderly or unwell in order to keep them safe from harm. Some people require a substantial package of care in order to meet their needs. If those people are assessed as lacking capacity they will not be able to consent to the care and treatment they receive or the restrictions that are placed on their freedom.
In order for those people to be deprived of their liberty lawfully, it has to be authorised.
In certain cases, if a person is being deprived of their liberty in a hospital or care home, then the supervisory body (usually the Local Authority or the hospital trust) can authorise the deprivation.
In other circumstances, such as a person being cared for at home or in supported living, the Court of Protection must authorise the deprivation of a person’s liberty.
All deprivations of a person’s liberty must be in that person’s best interests and must be the least restrictive measure in order to meet their needs and keep them safe.
When is a person deprived of their liberty?
The test for this is to establish whether they are under continuous supervision and control and are not free to leave. The restrictions placed on that person must be the responsibility of a statutory public body.
Even in cases where a person is physically unable to leave the confines of their home, or where they do not object to the restrictions, they are still being deprived of their liberty if under continuous supervision and control and if they cannot consent to the restraint, it must be authorised. The analogy given by the Court is that ‘a gilded cage is still a cage’.
What does this mean for me?
The case law in relation to deprivations of liberty is still developing. You may have heard of a case known as ‘Cheshire West’. In this case the Supreme Court gave what is referred to as ‘an acid test’ to decide if a person is being deprived of their liberty. In reality this means thousands of people may be in a situation where they are being deprived of their liberty, cannot consent to it, and it has not been authorised. It is a complex area of law where specialist advice should be sought at the earliest opportunity.
We are experienced in assisting people who believe there is an un-authorised deprivation of liberty. Contact us for advice today.