Deprivation of liberty for professionals
Information for partner organisations and professionals
Deprivation of liberty Safeguards
Some people cannot make their own decisions about their care and treatment because they do not have the mental capacity to do so. These people need extra protection to make sure that they do not suffer harm, especially in situations where delivering the necessary care requires their personal freedoms to be restricted to the point of actually depriving them of their liberty.
Examples of a deprivation of liberty are:
- forcing a person to take medication against their will
- staff exercise complete control over a person's care and movements
- staff make all decisions about a person's assessments, treatments, visitors, being released into the care of others, where they can live
- staff refuse to discharge someone to the care of relatives or others
- preventing someone from seeing friends or family.
Supreme Court judgement
On 19 March 2014, the Supreme Court handed down its judgements in the cases of P vs Cheshire West and Chester Council and another and P and Q vs Surrey County Council.
The Supreme Court found that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances: 'The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements'.
The judgements suggest that the definition of a deprivation of liberty is wider than previously thought. The present definition of what constitutes a deprivation of liberty is when someone is under constant supervision and control and is not free to leave.
The Supreme Court held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This includes a placement in a supported living arrangement in the community.
Where there is, or is likely to be, a deprivation of liberty in such placements, this situation is not covered by the safeguards and it must be authorised by the Court of Protection.
How do I apply for a deprivation of liberty authorisation?
If the Managing Authority (care home or hospital) believe that it is necessary to deprive a person of their liberty in order to provide them with appropriate care and treatment, they should complete a request for an authorisation for a deprivation of liberty and send it to the supervisory body. For people normally resident in Tower Hamlets, or in placements funded by The London Borough of Tower Hamlets this is:
Safeguarding Adults and Mental Capacity Act team
Tel: 020 8547 2019
Fax: 020 8547 2277
On receipt of the application the team will arrange for a series of assessments to decide if it is right to deprive the person of their liberty.
People who lack capacity may be deprived of their liberty in settings such as supported living units. Providers who are concerned that their care plans in these settings may amount to a deprivation of liberty should ask the safeguarding and MCA team for guidance and this may mean the responsible team will make an application directly to the Court of Protection.
Independent Mental Capacity Advocates (IMCAs)
We will need to know whether the person has a family member or non-professional carer to support them through the assessment process. If not, we will appoint an Independent Mental Capacity Act Advocate (IMCA). Tower Hamlets ensures the provision of IMCAs through POhWER.
For information, advice and advocacy details view the IMCA leaflet.
Authorisation or non-authorisation of a deprivation of liberty
Not every assessment will result in an authorisation. However, if an authorisation is granted, we will appointment a representative to support the person and look after their interests. You will need to provide the representative with information about the person's care and treatment.
You must make regular checks to see if you still need the deprivation of liberty. If there has been a change in the person's situation that requires deprivation of liberty to be altered, temporarily suspended or terminated altogether, we will have to carry out a review.
If we turn down an authorisation request, you must not deprive the person of their liberty. You will need to take alternative steps and will be advised about this.