Is your organisation depriving someone of their liberty?

In March, the Supreme Court allowed two appeals regarding the test for determining whether care arrangements for people who lack mental capacity constitutes a deprivation of liberty. Although it concerned people in residential and supported living arrangements, the consequences of this landmark ruling extend into the wider health and social care sectors.

‘The broadness of the new test means many more arrangements amount to deprivation than was previously thought’

The court ruled that where such a deprivation occurs, health and social care providers are required to seek a Deprivation of Liberty Safeguards authorisation or authority of the court in complex cases.

In her leading judgment, Baroness Hale provided an “acid test” for deciding what constitutes a deprivation of liberty as being where a person is “under continuous supervision and control and is not free to leave”.

For the purposes of this test, it is beside the point that the person does not object to the arrangements or that the arrangements are “relatively” normal, where the comparator would be someone similarly disabled.

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• Deprivation of liberty – guidelines from the Supreme Court

It is equally irrelevant that arrangements are an appropriate means of securing the person’s best interests.

Although these factors may justify a deprivation of liberty, they do not determine whether there has been a deprivation in the first place.

Unclear definitions

The broadness of this new test means many more arrangements amount to deprivation than was previously thought. This is already having significant consequences for healthcare providers and commissioners.

It is vital that following this judgment, healthcare organisations review care and treatment plans for patients lacking capacity to determine whether there is a deprivation under the new test.

In addition, it is likely that organisational policies, procedures and training will also require urgent review.

‘Considering the acid test provided by Baroness Hale, the exact definition of “control” is unclear’

The consequences of a failure to comply with the new regime will include claims for unlawful detention and damages under the Human Rights Act.

Considering the acid test provided by Baroness Hale, the exact definition of “control” is unclear. This is particularly true in healthcare situations. For example, it remains a matter for debate whether or not unconscious or minimally conscious hospital patients are under continuous control and therefore subject to a deprivation of their liberty.

It is hoped further guidance will be provided when further cases are reported. Until then, providers and commissioners should heed the advice of Baroness Hale that “we should err on the side of caution in deciding what constitutes a deprivation of liberty”.

Rebecca Fitzpatrick is head of the health and social care team at Hill Dickinson LLP