Deprivation of Liberty Safegaurds (part of the Mental Capacity Act 2005) are legal safeguards which ensure the protection of a person who lacks capacity to make decisions about their care, treatment and residence. The safeguards aim to make sure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom.

The safeguards ensure:

• That the arrangements are in the person’s best interests.

• That someone is appointed to represent the person who does not have capacity.

• That the person is given a legal right of appeal to the court of protection.

• That the person’s arrangements are reviewed and do not continue any longer than necessary.

When determining whether there is a deprivation of liberty, the following conditions have to be met:

• They are subject to continuous supervision and control.

• Are not free to leave, and

• It is imputable to the state.

A deprivation of liberty occurs when a person is under continuous supervision and in a care home or a hospital, is not free to leave and when the person lacks capacity to consent to these arrangements. If a person is subject to that level of supervision, and is not free to leave, then it is almost certain that they are being deprived of their liberty.

In addition to the conditions the following features may warrant the care home / hospital to consider a deprivation of liberty:

• Frequent use of sedation / medication to control behaviour

• Regular use of physical restraint to control behaviour

• The person objects to the restriction and or restraint

• If the family or friends object to the restrictions

• The person is confined to a particular part of the establishment in which they are being cared for

• The placement is potentially unstable

• Possible challenge to the restriction and restraint being proposed to the Court of Protection

• The person is already subject to a deprivation of liberty authorisation which is about to expire.

The Mental Capacity Act allows restrictions and restraints to be used in a person’s support, but only if they are in the best interests of a person who lacks capacity to make the decisions themselves. The restrictions must be proportionate and can include but is not limited to:

• Using locks or keypads which stop a person going out

• The use of medication

• Close supervision or isolation

• Requiring a person to be supervised when out

• Restricting contact with others

• Removing items from a person

• Holding a person so they can be given care, support or treatment

• Bedrails, wheelchair straps, restraints in a vehicle and splints

• Staying somewhere against their wishes of a family member

Such restrictions / restraints can take away a person’s freedom and therefore deprive them of their liberty.

If you require any further information please contact the Court of Protection team.