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Safekeeping or Deprivation of Liberty?

If you have an elderly parent who is prone to wandering you may not think twice about locking the door for their own safekeeping. However, this can have serious implications and may be deprivation of that person’s liberty. No doubt many people have carried out restrictive measures – acting in mum or dad’s best interests – not realising that they may be committing a criminal offence.   

Deprivation of Liberty is complicated as there are different laws and procedures that apply depending on an individual’s circumstances. This is currently being reconsidered and some areas relating to Deprivation of Liberty may be replaced in the future with a scheme known as Liberty Protection Safeguards (LPS). It is unclear as to when any such scheme will come into effect. As such, what do you need to know about Deprivation of Liberty in the meantime? 

 What is a Deprivation of Liberty? 

 A Deprivation of Liberty occurs if: 

  1. a person is under continuous supervision and control and is not free to leave; and  
  1. that person lacks capacity to consent to these arrangements. 

Continuous supervision and control does not mean that someone needs to be watched and controlled 24 hours a day; it may be only for significant periods of the day. Simply because someone has not wanted to or is physically unable to leave does not mean they are free to leave. The more important question is how would you react if that person tried to leave; would they be stopped? 

Examples of where someone may be deprived of their liberty include: 

  • using locks or key pads to stop a person going in or out of an area 
  • close supervision either in the home or when out 
  • removing items from a person which could cause them harm 
  • physically stopping a person from doing something which could cause them harm 
  • bedrails, wheelchair straps or restraints in a vehicle 

Ideally you should make sure that all care a person receives involves as little restriction as possible. However, sometimes it will be necessary to take away some of a person’s freedom to provide them with the care or protection they need. The Mental Capacity Act acknowledges that sometimes it is in someone’s best interest to be deprived of their liberty. In such circumstances any Deprivation of Liberty must be authorised.  

Authorising a Deprivation of Liberty 

 There are 3 ways through which the Deprivation of Liberty of those lacking capacity to consent to their care and treatment is authorised: 

  1. Deprivation of Liberty Safeguard regime (often referred to as DOLS) 
  2. Under the Mental Health Act 1983 (MHA) 
  3. A Court of Protection Order 

DOLS can only be used in a care home or hospital. Someone in hospital can also be deprived of their liberty under the MHA. With both DOLS and the MHA the onus is on the care home provider or hospital to get authorisation for any deprivation. These do not apply in a private residence.  

In a private residence you are required to apply to the Court of Protection for an Order authorising the Deprivation of Liberty. If you think you may be depriving someone of their liberty (before applying to the Court of Protection) contact your Local Authority Adult Safeguarding team and explain the position to them. The Adult Safeguarding team can work with you to identify whether there are less restrictive care arrangements that could be put in place, which would not amount to a deprivation. If less restrictive measures cannot be put in place, since you have notified the Local Authority it is then their responsibility to apply for a Court of Protection Order authorising the deprivation.  

 Whilst it is the responsibility of the Local Authority to apply to the Court of Protection, Local Authorities can become overwhelmed with such applications and may not be very quick to apply. In such circumstances you should continue to push and chase the Local Authority – as the Deprivation of Liberty (that you are carrying out) will remain illegal until authorised. If, after the third attempt the Local Authority has not made the application, it is advisable to contact solicitors for assistance.  

  • Lynn Wicks is a Partner in the Lifetime Planning Team of Ashtons Legal, and an accredited Solicitor for the Elderly specialising in legal issues affecting the elderly and vulnerable clients. She is based in the Cambridge office but covers clients across East Anglia. 
  • For more legal guidance visit Ashtons Legal
  • For advice on home adaptations to make it safer to stay living at home visit our Help at Home page.