Deprivation of Liberty Training For Care Providers Gary Underhill Spearman Consultancy

Deprivation of liberty – Background Art 5(1) ECHR Everyone has the right to liberty. No (person of unsound mind) shall be deprived of liberty without a procedure prescribed by law Art 5 (4) Everyone deprived of their liberty shall be entitled to take proceedings to quickly decide the lawfulness of the detention Bournewood case - ECJ found UK to be non compliant with Art 5 hence DoL s/guards 2Spearman Consultancy

When is there a deprivation? No statutory definition “references to DOL” in the Act have the same meaning as in Art 5 Therefore the definition is evolving and practitioners must look at case law of both European & UK courts 3Spearman Consultancy

Lining up your ducks Spearman Consultancy Objective Subjective State Responsibility

Weighing deprivation Spearman Consultancy Objective Look at P’s whole situation & context Confinement Objections or compliance Extent of control Carers – are they refused contact, discharge? Relative normality of life Where living Signs of normality Purpose of the restrictions Whether P has somewhere else they could go A Multi-factorial Approach

An easier way? Objective Relevant comparator But subjective & no consistency Means incapacitated people have less rights Spearman Consultancy

The Acid Test Spearman Consultancy Continuous Supervision & Control Not free to leave & Supreme Court majority discovered in the case law that there was indeed a line of reasoning or litmus test running through the jurisprudence:

Reasoning Universality of Human Rights - so definition of deprivation not related to capacity or disability Issue of DoL is separate to that of BI (instead of a view on BI affecting whether restrictions are DoL) No longer relevant: – Presence or absence of objections – Relevant normality of placement – Reason or purpose of placement Relevant comparator is a capacitated person of same age Spearman Consultancy

Debates about interpretation Concrete situation still relevant, but now some clear objective guidance rather than a lucky dip! CS+C – commonalities from P, Mig & Meg 24/7 – Not being allowed out without supervision – Control over contact; Control over activities – Where does the sub 24/7 care DoL lie? Not free to leave – Likely means freedom to leave permanently – Is frequency away from care setting relevant? Spearman Consultancy

Some Implications Lots more DoLS cases especially 39D Dementia Care homes ITU patients More sectioned patients Residence requirements NFTL e.g. g/ship Supported Living placements P supported in own homes Spearman Consultancy

Finally If in doubt – apply for the safeguards Watch for forthcoming guidance Spearman Consultancy