Identifying a Deprivation of Liberty

If a person lacks capacity to consent to their care or treatment, it is likely that a deprivation of liberty is occurring if:

1. They are under continuous supervision or control; or
2. They are not free to leave the place where they are receiving care or treatment; and
3. The care or treatment being received is imputable to the state.

The above conditions are often referred to as the Acid Test (defined in the case of Cheshire West).

Continuous supervision and control

Whenever care or treatment is provided there will probably be some element of supervision or control. For example:

1. The person may require monitoring when taking their medication;
2. They may have the nature of their food choices restricted due to a risk of choking;
3. They may be permitted to go out unaccompanied for short periods, but they are monitored or subject to restrictions about what they will do or when they will be back.

The more control or restrictions placed on a person, the more likely it is that the supervision and control would be ‘continuous’.

Not free to leave

A person is not free to leave if they:

1. Are required to be there to receive the care or treatment; and
2. Would be prevented from leaving on their own if they attempted to do so.

An important thing to remember about being 'free to leave' is that it does not matter whether the person is asking or attempting to leave; what matters is the response that they would receive if they were to do so.

Where the person lives in a care home (residential home or nursing home), leaving should be considered in the context of both what would happen if the person wanted to leave for a short period (for example to go for a walk) and what would happen if they wanted to leave and not return i.e. live somewhere else.

Imputable to the state

Care and treatment is imputable to the state if the state has made the arrangements for that care to be provided or the state has become aware of the arrangements. This includes care that is privately arranged, about which the state becomes aware. For example, because a safeguarding concern is raised or a GP makes a referral. Once the deprivation of liberty has come to the attention of the local authority, it is imputable to the state. State imputability also applies where the court has appointed a Deputy, and the Deputy has made the care arrangements which deprive the person of their liberty.

Restraint is defined in the Mental Capacity Act as:

1. Any act that uses, or threatens to use, force to carry out another function to which the person resists; or
2. Any act that restricts the person's freedom of movement, whether or not they resist.

The use of restraint will usually mean that the person is deprived of their liberty.

The only occasion where the use of restraint would not normally amount to a deprivation of liberty is in an urgent situation, where the person using restraint believes that in that moment, the use of restraint is necessary to prevent harm and where the level of restraint they have used is proportionate to the likelihood and seriousness of harm.