MCA Deprivation of Liberty

What is deprivation of liberty (DoL)?

Depriving a person of his or her liberty is one of the most serious infringements of a person’s human rights.  The Act therefore treats detention amounting to a DoL as one of the most serious interventions that can be done to a person who lacks capacity (P).

Each DoL must be considered individually and on the particular circumstances of each case. 

Blanket assumptions must not be made!

Account must be taken of a whole range of criteria such as type, duration, effect and manner of implementation.

There is no all-encompassing definition of what a DoL is but criteria for DoL has been informed by some key Court judgements.

What constitutes a deprivation of liberty?

There is no specific list of interventions and practices that constitute a DoL.

Section 2.8 of the DoLS Code of Practice says that a DoL “must be considered on individual merit and on the particular circumstances of each case; blanket assumptions must not be made. Account must be taken of a whole range of criteria such as type, duration, effect and manner of implementation of the measure.”

A legal ruling in March 2014, known as the “Cheshire West” ruling, identified the “acid test” to help determine if someone is being deprived of his or her liberty.

In Northern Ireland, this “acid test” is the criteria that must be used.

Acid Test in determining a DoL

To test if a person who lacks capacity is deprived of his or her liberty the following questions must be asked:

Is P subject to continuous supervision and control?

AND

Is P not free to leave?

If the answer is ‘Yes’ to both, P is subject to a DoL!

If P is under continuous supervision and control and is not free to leave, P is subject to a DoL and the DoL Safeguards must be applied.

What does ‘continuous supervision and control’ mean?

Being under continuous supervision and control depends on the particular circumstances but may include control over who P can have contact with, control over P’s activities or supervision over P’s health and actions.

Continuous does not require 24 hour observation but that there is a plan in place which requires the organisation or authority to always know:

• where the person is, and
• what the person is doing at any one time.

Supervision and control does not require every decision being taken for the individual (e.g. what to eat for breakfast) but exists if aspects of decision making are allowed to the person only at the discretion of those in control of his or her care.

What does ‘not free to leave’ mean?

Not being free to leave may include locked doors that are not unlocked on P’s request, physically preventing P from leaving or not being able to leave the place without supervision.

Freedom to leave is separate to the individual having the ‘ability to leave’ or ‘attempts to leave’ – the issue relates to whether steps would be taken to prevent the person from leaving if he or she sought to do so

Restraint or DoL?

An act that is short, time-bound and reactive to an immediate event is likely not to be a DoL and is more likely to be restraint.  Restraint can take many different forms but restraint that is ongoing, planned or regular will most likely need to be categorised as a DoL.  However, it is important to assess each circumstance against the “acid test” criteria.

Examples of restraint include:

• withholding information (e.g. not telling someone where they’re being taken to prevent resistance),
• mechanical (e.g. a seatbelt),
• physical (e.g. holding a person down),
• chemical (e.g. administering a sedative),
• restrictive choice (e.g. not showing a person where the door to leave is).

Seclusion is, in general, regarded as a deprivation of liberty.

What is mental capacity in DoLS?

P is deemed to lack capacity if he or she is unable to make a decision for himself or herself in relation to the DoL because of an impairment of, or a disturbance in the functioning of, the mind or brain.

A person is not to be treated as lacking capacity in relation to a DoL unless it is established that the person lacks capacity in relation to that DoL.  The person may have capacity regarding a number of other elements of his or her care or treatment; however, DoLS is only concerned with P’s capacity in relation to the DoL.

The DoLS applies only to people who lack capacity.  A person who has capacity in relation to a proposed DoL cannot be deprived of liberty.

Deprivation of Liberty Animation Videos

The Department has produced a series of animated videos to visually explain the Deprivation of Liberty Safeguards alongside a case study of a person’s journey through the legislative framework. These videos outline the process of implementing the safeguards and are tools that complement MCA training provided by the Department of Health or HSC Trusts.

The DoLS journey

Easy read versions - The DoLS journey

Trusts operations

Back to Homepage