Deprivation of Liberty Training
For Care Providers
Gary Underhill
spearmanconsultancy@gmail.com
07933 393 885
Spearman Consultancy 21-5-2014
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Deprivation of liberty –
Background
• Art 5(1) ECHR Everyone has the right to liberty.
No (person of unsound mind) shall be
deprived of liberty without a procedure
prescribed by law
• Art 5 (4) Everyone deprived of their liberty
shall be entitled to take proceedings to quickly
decide the lawfulness of the detention
• Bournewood case - ECJ found UK to be non
compliant with Art 5 hence DoL s/guards
Spearman Consultancy 21-5-2014
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When is there a deprivation?
• No statutory definition “references to DOL” in
the Act have the same meaning as in Art 5
• Therefore the definition is evolving and
practitioners must look at case law of both
European & UK courts
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Lining up your ducks
Objective
Subjective
Spearman Consultancy 21-5-2014
State
Responsibility
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Weighing deprivation
Objective
A Multi-factorial
Approach
Look at P’s whole situation & context
Confinement
Objections or compliance
Extent of control
Carers – are they refused contact, discharge?
Relative normality of life
Purpose of the restrictions
Where living
Signs of normality
Whether P has somewhere else they could go
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An easier way?
• Objective
• Relevant comparator
• But subjective & no consistency
• Means incapacitated people have less rights
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The Acid Test
Supreme Court majority discovered in the case law that there was indeed
a line of reasoning or litmus test running through the jurisprudence:
Continuous Supervision & Control
&
Not free to leave
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Reasoning
• Universality of Human Rights - so definition of
deprivation not related to capacity or disability
• Issue of DoL is separate to that of BI (instead of a
view on BI affecting whether restrictions are DoL)
• No longer relevant:
– Presence or absence of objections
– Relevant normality of placement
– Reason or purpose of placement
• Relevant comparator is a capacitated person of same
age
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Debates about interpretation
• Concrete situation still relevant, but now some clear
objective guidance rather than a lucky dip!
• CS+C – commonalities from P, Mig & Meg 24/7
– Not being allowed out without supervision
– Control over contact; Control over activities
– Where does the sub 24/7 care DoL lie?
• Not free to leave
– Likely means freedom to leave permanently
– Is frequency away from care setting relevant?
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Some Implications
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Lots more DoLS cases especially 39D
Dementia Care homes
ITU patients
More sectioned patients
Residence requirements NFTL e.g. g/ship
Supported Living placements
P supported in own homes
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Finally
• If in doubt – apply for the safeguards
• Watch for forthcoming guidance
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