Learning Disability Today
Supporting professionals working in learning disability and autism services

Deprivation of liberty: how to identify when it may be taking place

In April 2023, it was announced that the implementation of the Liberty Protection Safeguards (LPS) would be delayed indefinitely. LPS was designed to address some of the shortcomings and complexities of the Deprivation of Liberty Safeguards (DoLS) system, making it more efficient given the extreme backlogs and offering greater protection for people.

LPS was also going to cover young adults from the age of 16, currently 18, and community settings rather than DoLS, which focuses on care homes and hospitals. While this doesn’t mean that LPS will no longer happen, it does mean that we need to make the best of the DoLS system that is currently in place.

Community Deprivation of Liberty Safeguards (often just referred to as DoLS) refer to situations where an individual’s freedom is restricted within the community rather than a care home or hospital setting. These include settings such as supported living, shared lives schemes, extra care housing, and private homes, whether owned or rented by the person or their family.

Is deprivation of liberty the only approach?

Deprivation of liberty safeguards is part of the Mental Capacity Act 2005 and defined by the CQC in The State of Health Care and Adult Social Care in England 2023/24 as “a person is considered deprived of their liberty if they are unable to leave their living environment permanently for example, to live where or with whom they choose and are under continuous supervision and control”.

This means they are monitored for significant periods of the day and cannot make important decisions about their own lives. This is commonly called ‘the acid test’. Safeguards, such as DoLS, are crucial to ensuring that any deprivation of liberty is necessary, proportionate, and in the person’s best interests.

 

Day in the life of someone under community DoLS

I wake up and I can see the sun coming through my curtains, it looks like its going to be a nice day. I turn over but can’t get out of bed just yet; I have a rail in place to stop me from falling. I know if I make a noise, someone will come to help me. There is a monitor in my room so people know when I’m awake. Staff can hear me all through the night. 

My staff come and help me to get up. I go into my wheelchair because this is the only way I can move around. My lap belt and ankle straps make sure I’m safe in my chair. I can move my wheelchair myself sometimes, but early in the morning, I find this more difficult. My staff take me into my dining room and let me choose my breakfast. They show me cornflakes and porridge to pick from, and I wonder what else is in the kitchen, but I can’t go in there. The door is locked, and I’m told it wouldn’t be safe for me. 

After breakfast, it’s still sunny, so I move my wheelchair over to my window. I can see my favourite ball out in my garden, but I can’t get to it because the door is locked. I’m told it wouldn’t be safe for me to go outside on my own. I bang on the window and my staff know I want my ball, they pass me a different ball and start to play with me.

I like playing ball, and my staff know just the songs I like them to sing with me. My favourite ball is still out in my garden, out of my reach. Sometimes, I can get cross when I can’t reach my things or for other reasons. Sometimes, I hurt myself when I’m cross. I have a tablet for when staff are really worried about me hurting myself, and this makes me tired. 

I have lunch early today because my second support worker is coming, so I can go out. I have two people with me when I go out. I am told this is to keep me safe. Luckily the sun is still shining as sometimes we miss the good weather waiting for my second staff member. I chose where I want to go from some photos I have. I want to go to the beach today. 

There is a screen in my car, which means I can’t touch or pass anything to my staff sitting in the front. I am told this is to keep everyone safe. They talk to me, though, and always put on the music they know I like. I have a good time at the beach, but we have to go home after a couple of hours because one of my support workers is about to finish work.

Teatime is much the same as breakfast. I choose what I’m having from some pictures I have, and I sit waiting in my dining room. Evenings are good fun, I watch the TV with my support staff. I sit in my comfy chair but can’t move around my house without my wheelchair. I go back to bed just before my favourite programme ends, my staff need to go to their home.

Imagine waking up in your own home and your entire day being planned, supervised and managed by other people.  Imagine really liking your home, it being decorated just how you want it but there being doors you can’t get through, including the door that goes outside. You really get on with the people who come to help you; they know the things you like, and they are kind to you, but they are always around and make lots of decisions for you. For some people, this is the reality.

This is why, regardless of our role, we must always ask ourselves whether we are choosing the least restrictive option. Is there another approach that could be considered? Is depriving someone of their liberty truly the only solution?

Data from the NHS for the period 1 April 2023 to 31 March 2024 shows that DoLS applications (only for care homes and hospitals) have risen to an estimated 332,455, up 11% on the year before.  Duddles (2024) states that “in 81% of cases, the person assessed had been unlawfully deprived of their liberty for a significant period leading up to the assessment”.

Age UK highlighted that in 2022/23, 84% of DoLS applications were made for people aged 65 or over. While waiting for DoLS applications to be processed, 49,325 people died, meaning that they didn’t have the safeguards in place that DoLS provides.

Backlog in applications

The backlog in applications now exceeds 100,000. The latest figures for Community Deprivation of Liberty show that 6,210 applications were submitted in 2023; however, the number of orders granted from this almost doubled (an increase of 95%) compared to the previous year, with 5,276 orders made during 2023, the highest in its series (Accredited official statistics Family Court Statistics Quarterly: October to December 2023, 2024).

The table below from the Ministry of Justice shows the Deprivation of Liberty applications and orders that went through the Court of Protection from January to March 2011 to October to December 2023.

This shows that the trend is for DoLS applications to continue to increase, which could be due in part to the increasing awareness of community DoLS and its legal duties.

Deprivation of liberty: “A gilded cage is still a cage”

A key concept in understanding deprivation of liberty comes from the Supreme Court case P v Cheshire West and Chester Council. Lady Hale, who delivered the judgment, famously stated, “A gilded cage is still a cage.”

This means that no matter how well cared for or how comfortable a person’s life may be if their freedom is restricted, they are still deprived of their liberty. Local authorities are responsible for investigating and taking appropriate action if they are aware, or should be aware, of a deprivation of liberty — regardless of whether they fund the person’s care.

When it comes to community DoLS, the case must always be brought before the Court of Protection, even if the deprivation of liberty is deemed to be in the person’s best interests. Without the DoLS process, there are no safeguards in place for either the person or those around them to challenge or uphold the deprivation.

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Like all DoLS, community DoLS, at a minimum, restricts a person’s Article 5 rights under the Human Rights Act 1998, which guarantees the right to liberty. Often, DoLS also impacts Article 8 rights related to private and family life. As a result, every community DoLS case must be referred to the Court of Protection to ensure the individual’s rights are fully protected.

Community DoLS versus standard DoLS

The process for applying for a community DoLS differs from standard DoLS in that the local authority, rather than a care home or hospital, must apply to the Court of Protection. The application will include details of the individual, their care plan, and the circumstances under which their liberty is being restricted.

In practically all cases, the individual will have a Rule 1.2 representative. This representative can be a family member or an independent advocate. The representative’s role is to represent the person and raise any concerns about their care and support. A person with lasting power of attorney cannot make decisions about deprivation of liberty in place of the court, but they may serve as the Rule 1.2 representative.

It is important to reflect on whether there are any potential deprivations of liberty that may have gone unnoticed because they seem “normal” or “everyday.” Examples include locked doors or cupboards, restraints (such as straps or chemicals), door or bed sensors, bed rails, and blanket restrictions that apply to everyone, which can never be justified.

Identifying a Deprivation of Liberty: A Practical Guide (2024), published by The Law Society, offers useful examples of what might constitute a DoLS in a community setting.

Finally, as Lady Hale stated in the Cheshire West case, “In the case of vulnerable individuals, we should err on the side of caution when determining what constitutes a deprivation of liberty.”

Therefore, we must actively question what constitutes a deprivation of liberty, ensure we are promoting the least restrictive options, and identify situations that should be raised as community DoLS cases to the Court of Protection in order to protect people’s human rights.


Helen Kidd is Lead Care Act Advocate at Vocal Advocacy


Resources

39 Essex Chambers, https://www.39essex.com/information-hub/case/re-ve

Adult Social Care Community DOLS Process, https://proceduresonline.com/trixcms/media/6254/community-DoLS-guidance-v1-oct-2020.pdf

The state of health care and adult social care in England 2023/24 (2024) CQC, https://www.cqc.org.uk/publications/major-report/state-care/2023-2024

Deprivation of Liberty in the community – Advocacy Conference 2024 Helen Ingleson Irwin Mitchell (2024) https://www.youtube.com/watch?v=COLVUNIkeGo

Identifying a deprivation of liberty: a practical guide (2024) The Law Society.  https://www.lawsociety.org.uk/topics/private-client/deprivation-of-liberty-safeguards-a-practical-guide

DOLS data (2024) NHS, https://digital.nhs.uk/data-and-information/publications/statistical/mental-capacity-act-2005-deprivation-of-liberty-safeguards-assessments/2023-24#resources

Duddles, M (2024) Has DoLS Turned a Corner? https://www.bondsolon.com/insight/has-DoLS-turned-a-corner/

Age UK (2024) Age UK report finds the system for protecting the fundamental right to liberty of older people with diminished capacity is in urgent need of reform, https://www.ageuk.org.uk/latest-press/articles/2024/age-uk-report-finds-the-system-for-protecting-the-fundamental-right-to-liberty-of-older-people-with-diminished-capacity-in-urgent-need-of-reform/

Deprivation of liberty court application numbers hit record high(2024) https://www.communitycare.co.uk/2024/07/01/deprivation-of-liberty-court-application-numbers-hit-record-high/

Accredited official statistics Family Court Statistics Quarterly: October to December 2023 (2024) Ministry of justice, https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2023/family-court-statistics-quarterly-october-to-december-2023#mental-capacity-act—court-of-protection

 

 

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Helen Kidd Vocal Advocacy

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