Care homes sometimes find it difficult to identify when they are depriving a resident of their liberty. Here deprivation of liberty safeguards expert John Leighton sets out what they need to look out for.
• There is no bright line that determines a deprivation of liberty and each case has to be judged on its own facts.
• The deprivation of liberty safeguards code of practice suggests thinking about a scale that moves from ‘restraint’ or ‘restriction’ to ‘deprivation of liberty’.
• The code of practice also offers guidance on relevant factors to identifying a deprivation of liberty (paragraph 2.5) and further pointers have been suggested by commentators and by case law.
• The person is confined in a particular restricted space ‘for a not negligible length of time’ (Storck v Germany 2005).
• The person lacks capacity to validly consent to the arrangements of their care (Storck v Germany 2005).
• There is ‘complete and effective control’ over the person’s care and movements (HL v United Kingdom 2004).
• The person is under ‘continuous supervision and control and is not free to leave.’ (HL v United Kingdom 2004).
• The ‘purpose’ of the restraint or restriction is not relevant as to whether or not there is actually a deprivation: it is more about what is done rather than why it is done (P and Q v Surrey County Council 2011).
Free to leave
• The person is not free to leave in the sense of removing herself permanently in order to live where and with whom she chooses. (DE and JE v Surrey County Council 2006).
• Restrictions are applied with the intention of preventing the individual leaving the home and she is making persistent and purposeful attempts to do so (including restrictions within the home designed to prevent the person leaving) (see Jones, Richard (2011) The Mental Health Act Manual 14th Ed London p1036).
• The person objects to being confined in the care home (P and Q v Surrey County Council 2011).
• The person is objecting to or resisting admission and force, threat, medication or subterfuge is used to admit or take her to the home (see Jones, Richard (2011) The Mental Health Act Manual 14th Ed London p1036).
• The person’s ability to object or express herself is suppressed by medication (particularly antipsychotics or tranquilizers) especially if the administration of medication is attended by force (P and Q v Surrey County Council 2011).
• Relatives or carers object to the placement (HL v United Kingdom 2004; DE and JE v Surrey County Council 2006).
• Equally, the absence of objections or of suppressing medication is a pointer in the other direction away from a deprivation. (P and Q v Surrey County Council 2011).
Contact with others
• A decision has been taken that the person will not be discharged into the care of relatives or carers (LB Hillingdon v Steven Neary 2011).
• There are arrangements in place intended to deny or restrict the individual from having contact with her relatives or carers (HL v United Kingdom 2004; DE and JE v Surrey County Council 2006; LB Hillingdon v Steven Neary 2011).
• The person is denied or severely restricted from having access to the community (see Jones, Richard (2011) The Mental Health Act Manual 14th Ed London p1036).
• There is a wide spectrum between a small children’s home or nursing home, on the one hand, and a hospital designed for compulsory detention and it is necessary to place each case along it (P and Q v Surrey County Council 2011).
• There may be situations when the total number of restraints and restrictions will amount to a deprivation of liberty, like single pieces of a jigsaw building up to an overall picture.
• There will be a whole range of factors arising in each case, such as the type, duration, effects and manner of implementation of the measure in question (A London Local Authority v JH 2011).
• Nevertheless, the threshold on the scale is judged to be ‘complete and effective control’ over the person’s care and movements, so that the individual is ‘under continuous supervision and control and is not free to leave’.
This is not an exhaustive list and no doubt future cases will add to it.
John Leighton advises care homes on the implementation of the Mental Capacity Act and deprivation of liberty safeguards as provider development manager for the National Care Association, a role in which he is employed by the Social Care Institute for Excellence.