Deprivation of Liberty: The guidance that we have all been waiting for


10 April, 2015

The case of P v Cheshire West and Chester, 12 months ago, threw the mental health and social care professions into disarray as its clarification of the law meant that potentially thousands of people, who had not previously been consider to be deprived of their liberty, now were. This meant that the care provisions for all those who were deprived would need to be authorised by the Court. But there are as many different care packages and scenarios as there are people, so how were the professions to decide who was deprived and who was not and for civil lawyers, how could we decide if the correct decision had been taken with regards to authorisation?

After 12 months of solid debate on the subject, applying the analysis of Lady Justice Hale to our relevant scenarios and all coming out with different views, the Law Society has provided a comprehensive guide on what is likely and what is unlikely to be considered a deprivation of liberty in a number of different scenarios. Access to the document can be found here; Helpfully this document now covers 16 and 17 year olds who essentially fell between two stools previously, being covered by the Mental Health Act and Mental Capacity Act but not Deprivation of Liberty safeguards. The guidance also provides guidance on deprivation of liberty in hospitals, psychiatric settings, care homes, supported living and at home and provides scenarios for practitioners to get a feel for what may and may not be a deprivation.

There is no question that this guidance is helpful and long overdue, however this is by no means a definitive guide and one questions whether one could ever be provided. As such staff on the ground will have to have an excellent working knowledge of this guidance and record their thought processes and analysis of the individual circumstances against this guidance in order to protect themselves and their employer against criticism.

This guidance does not cover what to do when a DOL is identified, that was apparently not what the Law Society policy team were asked to consider. The administration of the DOL authorisation procedure is still in the hands of the Court of Protection who are currently over run with applications, understandably so. The Law Commission have been charged with reviewing the whole issue of DOL authorisation and the administrative issues that it raises. This work commenced in the summer of last year and will continue until 2017. A consultation process will begin in the summer of 2015 which is an opportunity for Local Authorities particularly to make representations to the Law Commission about issues which they think should be considered. Access to the Law Commission website can be found here;

For further information on this guidance please contact Kella Bowers on 01254 662831 or by email Kella Bowers


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