Deprivation of Liberty Safeguards
Introduction
People who suffer from a disorder or disability of the mind, such as
dementia or a profound learning disability, and who lack the mental
capacity to consent to the care or treatment they need, should be
cared for in a way that does not limit their rights or freedom of
action.
In some cases members of this vulnerable group need to be
restricted in order to provide treatment or care because this is
necessary in their best interests to protect them from harm. The
degree and intensity of the restrictions may amount to them being
deprived of their liberty.
What do the safeguards do?
The aim of the deprivation of liberty safeguards is to

Provide legal protection for those vulnerable people who are
deprived of their liberty, otherwise than under the Mental
Health Act 1983.

To prevent arbitrary decisions to deprive a person of liberty

To give rights to challenge deprivation of liberty
authorisations.
The safeguards apply to people who lack capacity to consent to care
or treatment, and who are suffering from a disorder of the mind.
The Government expects that implementation of the safeguards will
reduce the numbers of people deprived of their liberty in care
homes and hospitals.
What is deprivation of liberty?
There is no simple definition of deprivation of liberty. The question
of whether steps taken by staff in caring for a person amount to a
deprivation of that person’s liberty is a legal question, which can
only be decided by the courts.
The European Court of Human Rights points out that there is a
difference between deprivation of liberty (which is unlawful, unless
authorised) and restrictions on an individual’s freedom of
movement.
Deprivation of Liberty Safeguards
The question of whether someone has been deprived of liberty
depends on the particular circumstances of the case. Specifically,
‘to determine whether there has been a deprivation of liberty, the
starting-point must be the specific situation of the individual
concerned and account must be taken of a whole range of factors
arising in a particular case such as the type, duration, effects and
manner of implementation of the measure in question. The
distinction between a deprivation of, and restriction upon, liberty is
merely one of degree or intensity and not one of nature or
substance.’ EctHR, October 2004, HL v the United Kingdom)
The following factors describe some of the possible
restrictions placed on people.
(On their own some of the factors could constitute a deprivation of
liberty but it is also important to consider whether the cumulative
effect of all the restrictions imposed on the person amount to a
deprivation of liberty, even if individually they would not?)

Staff exercise control over assessments, treatment, contacts
and residence. Is the person prevented from maintaining
contact with the outside world?

Restraint is used, including sedation, to admit a person to a
care setting where that person is resisting admission.

Staff exercise complete and effective control over the care
and movement of a person for a significant period.

The person has no, or very limited, choice about their life
within the care home or hospital.

The person is not allowed any freedom of movement within
the care home, for example if they are not allowed to leave
their room for long periods of time.

A person’s behaviour and movement is controlled through
regular use of medication or seating from which a person
cannot get up may constitute deprivation of liberty.
Deprivation of Liberty Safeguards

A decision has been taken to prevent the person from leaving
and this is through distraction, locked doors or restraint, or by
leading them to believe they would be prevented from leaving
if they tried.

Family, friends or carers are prevented from moving the
person to another care setting or from taking them out at all.

Taking account of the limitations of their condition, the person
is not given reasonable opportunity to go outside of the home
(escorted or otherwise) even though it would be possible and
it seems likely they would enjoy it, it would reduce their
distress or anxiety, or it would be beneficial in some other
way.

A decision has been taken by the institution that the person
will not be released into the care of others, or permitted to
live elsewhere, unless the staff in the institution consider it
appropriate.

A request by carers for a person to be discharged to their care
is refused.
Who has duties under the safeguards?
Whenever a hospital or care home (Managing Authority) identifies
that a person who lacks capacity is being, or risks being, deprived
of their liberty, they must apply to the Supervisory Authority for
authorisation of deprivation of liberty. Where a person is in a care
home the supervisory body will be the relevant local authority.
Where the person is in a hospital, this will be the relevant Primary
Care Trust (PCT). The Mental Capacity Act will not permit someone
being deprived of their liberty without such an authorisation (unless
it is a consequence of following a decision of the Court of Protection
on a personal welfare question).
What next for Cornwall?
The Department of Adult Social Care (DASC) and the Primary Care
Trust (PCT) in Cornwall have set up a system to supervise and
authorise deprivations of liberty.
Deprivation of Liberty Safeguards
Who has set up the safeguards
for DASC and the PCT?
Paul Wilkins
Deprivation of Liberty Safeguards Lead
Directorate of Adult Care & Support
Learning, Training and Development
Room 620
Old County Hall
Truro
Cornwall TR1 3AY
Tel: 01872 322289
email: pwilkins@cornwall.gov.uk
Where can I get more information?
Department of Health briefing sheet:
http://www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/Ment
alCapacity/MentalCapacityActDeprivationofLibertySafeguards/DH_0
82421
Deprivation of Liberty Safeguards Code of Practice:
http://www.publicguardian.gov.uk/docs/draft-dols-code.pdf
Cornwall Council Mental Capacity Act Webpage
http://www.cornwall.gov.uk/index.cfm?articleid=37757