On 18 March 2024 the Law Society of England and Wales issued fresh guidance on deprivation of liberty.  The guidance entitled ‘Identifying a deprivation of liberty: a practical guide’ can be found here:  https://www.lawsociety.org.uk/topics/private-client/deprivation-of-liberty-safeguards-a-practical-guide. It is designed to assist health and social care practitioners in identifying when a deprivation of liberty may be taking place. 

There are strict limits to circumstances when human beings can be deprived of their liberty. Article 5 of the European Convention on Human Rights (ECHR) sets out the principles, the express procedural protection afforded to those who are deprived of their liberty and the right to compensation in case of unlawful deprivation. 

The initial Law Society guidance was issued in 2015 following the seminal Supreme Court judgment in P v Cheshire West [2014] UKSC 19 found here https://www.bailii.org/uk/cases/UKSC/2014/19.html

The principles of Article 5 ECHR were interpreted in Cheshire West. Three elements are required for a deprivation of liberty to take place: (a) an objective element (that the person is confined to a particular restricted place for a non-negligible period of time); (b) a subjective element (the person does not consent or does not have the capacity to consent) and (c) imputability to the State. 

For a deprivation of liberty to be lawful it must be authorised under statute (the Mental Capacity Act 2005 or the Mental Health Act 1983) or by court order. There is a simplified process under Schedule A1 to the Mental Capacity Act 2005 (a DOLS authorisation) that applies to adults in hospital settings and care homes. But a deprivation of liberty can exist in many other situations (e.g. transport to hospital, at home, in specialist housing…). 

Identifying and authorising a deprivation of liberty in those under 18 is even more complicated. 

There are two main reasons for this new guidance: 

  • Since Cheshire West there have been significant legal developments in respect of those under 18 and those who are receiving life-sustaining treatment. The law is still evolving and it is complex. For instance the guidance itself refers to 2024 judgments which seem to contradict Cheshire West. Practitioners would benefit from updated guidance. 
  • The system for authorising deprivations of liberty has been under review. A new regime – Liberty Protection Safeguards (LPS) – was advocated by the Law Commission. It was due to be formalised in a statute but the draft bill has been languishing and its implementation has been postponed indefinitely. A statutory Code of Practice was expected to accompany the new statute. This does not exist. The Law Society therefore decided to update its 2015 guidance in order to assist practitioners. 

The guidance includes many practical examples and factors pointing towards or away from a deprivation of liberty. There are lists of questions to ask to front-line practitioners in order to identify if there is a risk of deprivation of liberty. In such a complex area of law, reading this guidance carefully will repay its reader.