Deprivation of Liberty Safeguards David Thornicroft St Thomas Training

“Double whammy” for DoLS? House of Lords Select Committee report, 13 th March 2014 Supreme Court ruling, 19 th March 2014

Deprivation of Liberty Remember: it’s illegal to deprive someone of their liberty without some form of external authorisation For example: Arresting/imprisoning someone for a criminal offence Sectioning someone under the Mental Health Act DoLS authorisation from the local authority (registered homes and hospitals) Direct authorisation from the Court of Protection (supported living, Shared Lives etc)

Deprivation of Liberty Safeguards Introduced in England & Wales on 1 st April 2009 An update to the Mental Capacity Act 2005 Usually known as DoLS

“P” (the “Cheshire West” case) 38 years old Cerebral Palsy & Down’s Lives in bungalow with 2 other residents 2 staff during day, 1 waking night Supported to go to day centre, pool, pub, clubs, mum’s house

“P” (the “Cheshire West” case) continued Needs prompting and help with all activities of daily living, eg Getting around, eating, personal hygiene, continence Habit of pulling his continence pads off and putting them in his mouth Therefore required to wear a “body suit”

“P” (the “Cheshire West” case) continued Court of Protection ruled this was a deprivation of P’s liberty Court of Appeal ruled that it wasn’t What do you think the Supreme Court said?

The UK Supreme Court (19 th March 2014) A person is deprived of his liberty if he is “under continuous supervision and control and is not free to leave”

The UK Supreme Court (19 th March 2014) Is it still a deprivation of P’s liberty if he is compliant with the regime? Do different standards apply to P because he is “not normal”? Does the reasoning behind the care plan matter in determining whether it’s a deprivation of P’s liberty?

“P & Q” (the “MIG and MEG” case) Sisters, both with learning disabilities Both attend same school, both have lots of activities, trips, holidays etc (with support) MIG (18) lives with foster mother MEG (17) lives in NHS facility

“P & Q” (the “MIG and MEG” case) continued Both sisters reasonably content with living arrangements Neither showed particular desire to leave their placements But MIG’s foster mother, and MEG’s carers, both made it clear they would restrain them if they tried to leave

“P & Q” (the “MIG and MEG” case) continued Court of Protection ruled that neither MIG nor MEG was being deprived of her liberty Court of Appeal agreed What do you think the Supreme Court said?

The Supreme Court ruling A person is deprived of his liberty if he is: “under continuous supervision and control and is not free to leave” Human Rights are universal: if it would be a deprivation of my liberty, or your liberty, or anyone else’s liberty, then it would also be a deprivation of P’s liberty, or MIG’s liberty, or MEG’s liberty “A gilded cage is still a cage”

What does it mean for you?

What does it mean for you? Await guidance from the DoLS Lead at your local authority Read the guidance that has already been published by the Department of Health (28th March) … … and by CQC (4 th April) … … both of which are available at

What does it mean for you (continued)? Remember: deprivation of liberty should be a last resort … … so can you possibly cater for the needs of your service user in a less restrictive way? Are you depriving him/her of their liberty because there is definitely no alternative? And are you acting in your service user’s best interests … or your own?

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