In the second of our blog mini-series on Court of Protection Deprivation of liberty (CoPDoL), Fergus Campbell, NHS Midland and Lancashire’s (NHS ML) Clinical Lead for the Court of Protection and the Mental Capacity Act, and a qualified social worker, considers the challenges to public bodies and front-line practitioners in identifying a deprivation of liberty and how to apply case law to your CoPDoL caseload to ensure the best outcomes for individuals in your care.

Identifying a deprivation of liberty (DoL) is crucial in safeguarding the rights of individuals. The Law Society provided updated guidance in March 2024 to assist those in health and social care to identify when a deprivation of liberty may be taking place. Even with this guidance, it can be challenging for public bodies and front-line practitioners to identify a deprivation of liberty. An individual act by one person may be restrictive, yet not result in a deprivation of liberty. However, a collective overview of multiple restrictions may amount to deprivation for the individual concerned. 

Providing the necessary criteria are met, a DoL can occur in many environments. Notably, deprivation of liberty safeguards (DoLS) will apply to an adult meeting the ‘acid test’ in a hospital or care home. A community DoL can apply to an individual in their own home, supported living, or other community-based accommodation.

The ‘acid test’ for identifying a deprivation of liberty was established by the Supreme Court in the 2014 case of P v Cheshire West and Chester Council and P & Q v Surrey County Council by asking these key questions: 

– Does the individual lack the mental capacity to make the relevant decision? 

– Is the person subject to continuous supervision and control? 

– Is the person free to leave? 

However, each point above is not easily definable, but there is case law that helps in understanding the definitions. 

For example, two cases from the European Court of Human Rights (ECHR), Stanev v. Bulgaria and Ashingdane v. the United Kingdom, highlight some of the key barriers to recognising and addressing these deprivations effectively, as both individuals had regular unescorted leave of absence from where they were accommodated. 

The case law indicates that the definition of ‘continuous supervision’ should not be interpreted as requiring 24-hour monitoring and/or that the person is to be physically accompanied over a continuous 24-hour period. 

An alternative way to approach this consideration is to evaluate how much control and discretion is allowed to the individual in their care and day-to-day life, and if there is a plan in place where those providing care know where the individual is and what they are doing at any given time.

Likewise, ‘freedom to leave’ is interpreted by case law as the freedom to permanently move from the place of confinement to another location or to leave the premises entirely without confirmed plans. 

Simultaneously, if the person does leave that location, steps may be taken to locate and return the person back to the specified care provision.

It is important for practitioners to be aware that it is irrelevant whether the individual is compliant, does not object, or is not actively trying to leave. Even in the absence of resistance or an attempt to leave, the person may still be deprived of liberty if steps would have to be taken to prevent them from leaving, should they try.

Our support for you

At NHS ML, we have a specialist team of Court of Protection practitioners and best interests assessors who can assist public bodies with a wide range of Court of Protection matters, including: 

– Identifying deprivations of liberty 

– Deprivation of liberty applications 

– Capacity assessments 

– Best interests assessments 

– Decision making  

If your CoPDoL caseload is growing, ML is here to help. As part of the NHS, we can deliver a robust, efficient CoPDoL service to supplement your current activity, take the pressure off your teams and system, all whilst delivering the best value for every pound spent within our NHS.

Drop us an email, and we’ll get in touch to see how we can help. 

Contact details

E: mlcsu.personalisedhealthcare@nhs.net

W: https://www.midlandsandlancashirecsu.nhs.uk/personalised-healthcare-commissioning-services/our-services