Recognising and Responding to Deprivations of Liberty

Someone can be deprived of their liberty in any setting and at any age.

Circumstances which lead to a deprivation of liberty are defined within the case law of the conjoined cases of Cheshire West and P and Q (See link below).

The DoLS scheme however applies only to people aged 18 and over and can only be applied within the setting of either a care home or a hospital.

DoLS, though introduced into law through an amendment to the Mental Health Act (MHA) 1983, apply only to people who lack capacity to consent to their care in either a care home or hospital. People aged between 16-17 who may be deprived of their liberty come within the scope of the Mental Capacity Act (MCA), as this applies to people aged 16 and over but not of DoLS, as this applies to people aged 18 and over. Cases where people aged 16-17 may be deprived of their liberty can only be authorised through the Court, usually the Court of Protection (CoP).

Children under the age of 16 can be deprived of their liberty and such deprivation may still need to be authorised by the Courts. That would most likely occur in the Family Court.

Here is the link to the commentary on the CoP case of Cheshire West and P and Q with a link to the actual case:
  (1) P v Cheshire West & Chester Council & another; (2) P & Q v Surrey County Council (39 Essex Chambers)

As can be seen, the three identifiers noted by the CoP were:

Not free to leave

This refers to the fact that the person (P) would not be allowed to leave, should they either ask or attempt to do so. Were they to succeed in leaving they would be returned, by force, if necessary. It does not matter whether P asks to leave or not. What matters is what would happen if they did so. Leaving refers to leaving to live somewhere else. People can of course go on day trips or stay with family. Again, what matters is that P would not be allowed to leave permanently.

Continuous supervision and control

It should be noted that this does not refer to P being in constant line of sight or having permanent one-to-one support. If the placement would prevent P from leaving, then it must follow that they would have a level of awareness at all times as to P’s location within the placement so as to enable them to act to prevent them leaving should P attempt to do so. This is the common interpretation of the case law nationwide

Imputable to the state

Imputable to the state means that either the state provides that care or would be responsible to provide it if P did not have the funds to provide it themselves. Thus, it applies both to funded and self-funded packages of care.

• From Best Interest Assessors (BIAs) in their team;
• From their Team Manager;
• From the Supervisory Body.

If in doubt, speak the MHA/MCA Team. If they cannot help to resolve the query, then it may be that legal advice is sought but this should only occur after other avenues have been exhausted. Please note that there is a standardised procedure and form for seeking the support of our Legal Team.

Such cases that fall within the remit of the DoLS scheme, most commonly care home placements are dealt with by the care provider, hospital or care home, known in the DoLS scheme as the Managing Authority (MA) and the LA, known within the DoLS scheme as the Supervisory Body (SB). There is not usually a role for the Social Worker/Care Manager. Part of the safeguards are that it is an independent assessment. It should be borne in mind that it is for the MA both to identify when a placement may amount to a deprivation of liberty and for them to then refer to the SB, who will triage and manage the referral.

As the LA is not involved at all in Hospital admissions, it is hard to see where there is any interface with care management and DoLS in a Hospital setting.

For care homes, ordinarily, the LA will have organised the placement. In such cases, it will be helpful for the Social Worker/Care Manager to have a basic understanding of DoLS, such that they can identify when a placement may amount to a DoLS. As above, given any placement for any P who lacks capacity will amount to a deprivation of liberty then this should not be difficult to do.

The MA should undertake their own assessment of P to determine if they believe P should be referred. If they feel that they should, then they should refer to the SB. Such referrals then will likely be placed on the SB’s ‘stack’ of cases awaiting allocation (as per the current ADASS guidance/local procedures).

The decision to make a referral is the decision of the MA, based on their assessments and a separate process from that which the Social Worker undertook using the Care Act and the MCA to place P. It is the MA’s decision and not the Social Workers/Care Managers. Social workers should never seek to instruct the MA as to whether either to make nor not to make a referral. To do so runs the risk of undermining or interfering with or of appearing to interfere or undermine the safeguards of the DoLS process, which is independent of care management processes. This will then run the risk of court action and reputational and/or financial damages against the LA (see Hillingdon or Neary case).

When organising a placement, which the Social Worker/Care Manager believes may amount to a deprivation of liberty necessitating a DoLS referral, the Social Worker is not obligated to do anything about DoLS. They can however do the following:

• Inform the MA of their view on this matter;
• Notify the SB of their view on this matter.

As noted above, people can be deprived of their liberty in any setting. Determining whether a deprivation of liberty is occurring is less clear in these cases. Due to the nature of the care level involved, Shared Lives and Supported Living placements have a high potential to amount to a deprivation of liberty. There is little clarity from case law and divided opinion in relation to care taking place in a person s own home. 

As the DoLS scheme, as written, does not apply to settings other than care homes or hospitals, any deprivation of liberty occurring or thought to be occurring can only be authorised by an order of the CoP. 

It should be born in mind though that the CoP is limited in its ability to hear cases so even if you identify a potential deprivation of liberty in the community, this may not have been taken to the CoP.

Given that there is no clear route in law, only in caselaw, for either the placement provider or commissioner to follow in these circumstances the role of the Social Worker should be to inform their Line Manager that any such placement they make might amount to a deprivation of liberty. Should the placement provider feel the same then they can inform the care management team. Such cases can then be logged by the responsible care management team until such time as a decision is made about what to do with them.

Any placement or care plan instigated for any P, where it is thought they may lack capacity, will see the care manager undertake relevant capacity assessments. Should P lack capacity and should a Best Interest decision be required then the care manager will consult interested parties (MCA, S4). Caselaw has established that public bodies cannot routinely override objections to their care plans, either by P or their interested party, which cannot be resolved.

In that circumstance the placement may not go ahead and legal advice should be sought with a view to taking the matter to the Court of Protection.

If P does not object at the time of the placement but does so afterwards then again legal advice should be sought.

Legal advice should not be sought until the matter has been discussed with the MHA/MCA team and/or discussed with the care managers line manager. The exception would be where an emergency arose where there was a direct or immediate threat to life, at which point legal advice should be sought urgently. It should be noted that an interim Court Order can be sought and obtained on the same day, including out of hours.