Deprivation of Liberty Training For Care Providers

Gary Underhillspearmanconsultancy@gmail.com

07933 393 885Spearman Consultancy 21-5-2014 1

Deprivation of liberty – Background

• Art 5(1) ECHR Everyone has the right to liberty. No (person of unsound mind) shall be deprived of liberty without a procedure prescribed by law

• Art 5 (4) Everyone deprived of their liberty shall be entitled to take proceedings to quickly decide the lawfulness of the detention

• Bournewood case - ECJ found UK to be non compliant with Art 5 hence DoL s/guards

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When is there a deprivation?

• No statutory definition “references to DOL” in the Act have the same meaning as in Art 5

• Therefore the definition is evolving and practitioners must look at case law of both European & UK courts

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Lining up your ducks

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Objective Subjective State Responsibility

Weighing deprivation

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Objective

Look at P’s whole situation & context Confinement

Objections or compliance Extent of control

Carers – are they refused contact, discharge?

Relative normality of lifeWhere livingSigns of normality

Purpose of the restrictions

Whether P has somewhere else they could go

A Multi-factorial Approach

An easier way?

• Objective

• Relevant comparator• But subjective & no consistency• Means incapacitated people have less rights

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The Acid Test

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Continuous Supervision & Control

Not free to leave&

Supreme Court majority discovered in the case law that there was indeed a line of reasoning or litmus test running through the jurisprudence:

Reasoning

• Universality of Human Rights - so definition of deprivation not related to capacity or disability

• Issue of DoL is separate to that of BI (instead of a view on BI affecting whether restrictions are DoL)

• No longer relevant:– Presence or absence of objections– Relevant normality of placement– Reason or purpose of placement

• Relevant comparator is a capacitated person of same age

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Debates about interpretation

• Concrete situation still relevant, but now some clear objective guidance rather than a lucky dip!

• CS+C – commonalities from P, Mig & Meg 24/7 – Not being allowed out without supervision– Control over contact; Control over activities– Where does the sub 24/7 care DoL lie?

• Not free to leave – Likely means freedom to leave permanently– Is frequency away from care setting relevant?

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Some Implications

• Lots more DoLS cases especially 39D• Dementia Care homes• ITU patients• More sectioned patients• Residence requirements NFTL e.g. g/ship• Supported Living placements• P supported in own homes

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Finally

• If in doubt – apply for the safeguards• Watch for forthcoming guidance

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