Depriving a Persons Liberty is Against the Law
After the landmark ruling of the Supreme Court in the Cheshire West case (P v Cheshire West and Chester Council  UKSC 19), the test for when a person is deprived of their liberty becomes clearer.
If you have concerns that your loved one is being deprived of their liberty, we can help.
What is a Deprivation of Liberty?
In her judgment of the Cheshire West case, Lady Hale set out what she called the "acid test"
to determine whether a person has been deprived of their liberty.
Broadly, if a person:
- Lives in a registered care home, hospital or supported living placement (commissioned by the state, eg a local authority)
- Is not "free to leave"
- Is under "continuous supervision and control", and
- There is no valid consent to the living arrangements (usually because the person doesn’t have capacity to give such consent)
That person is deprived of their liberty, and that deprivation must be authorised
What happens if someone is Deprived of their Liberty?
Before any restrictions are put on a persons' liberty, an authorisation, either urgent (see below) or standard, has to be sought by those caring for the person or the relevant local authority
. This can be done either before they enter the care home or when they are already in the care setting. Depriving a person of their liberty before this authorisation has been granted is against the law
In some critical cases, a care home may grant itself an urgent authorisation lasting up to 7 days or more depending on the circumstances
, but they must apply for a standard authorisation at the same time.
The Nature of the Deprivation
Sometimes, as part of the deprivation, your family member may be subject to a range of restrictions, for example:
- They may be monitored when in their home and/or when they go out into the community
- They may be physically restrained on occasion
- They may only have limited contact with friends and family
- They may be prevented from engaging in a certain activity
The fact that an individual may at any given time be deprived of their liberty, is no reflection on the care provided for that person by their care provider
; it is simply a matter of fact. It may be that despite the deprivation of liberty, the person appears perfectly happy, content where they are and with the care provided (including any restrictions). Once considered, it might be determined that such a deprivation is in their best interests
However, before that can be determined, the deprivation, if it exists, must be authorised, so that the safeguards (and the assessments that they will involve) can be applied to protect that person. Importantly, whatever the nature of care provided, it should be provided in a way that is "least restrictive"
to the one receiving it.
What can we do to help?
As a family member, you may have concerns that your loved one is being deprived of their liberty unlawfully
. In many circumstances, you may be best placed to notice that a deprivation is happening. If you have concerns, you can contact us for advice and assistance.
If we find that your loved one is being deprived of their liberty we can help you to try to negotiate with the care home and/or the local authority to put in place the necessary authorisations
as soon as possible. Once the authorisations are in place, we can also help you to ensure that the relevant steps have been taken properly by the care home and/or the local authority.
If you have concerns about the authorisation when it is in place or any restrictions placed on your family member, we can also help you to consider whether you wish to challenge that authorisation
. This is done through correspondence with the local authority or, if necessary, through an application to the Court of Protection. This area of law can be confusing and complicated and the situation is often made more stressful because it involves the health, safety, and care of someone very close to you. If you have concerns that a loved one and/or family member are potentially deprived of their liberty please get in touch, and we can consider the best way forward together.