2. What is a deprivation of liberty?
Examples of making decisions or placing restriction on someone with dementia could include deciding on the person’s routine, stopping them from walking about at night, or preventing them from leaving. Care home or hospital staff should make sure that all care a person receives involves as little restriction as possible. However, sometimes it will be necessary to take away some of the person’s freedom to provide them with the care they need.
Sometimes, taking away a person’s freedom in this way can amount to a ‘deprivation of liberty’. A deprivation of liberty occurs when:
‘The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.’
Examples of how this definition can be broken down are shown below.
Continuous supervision and control
The kind of care that people receive in care homes or hospitals will usually involve both supervision and control. Staff will monitor and watch residents or patients, they will decide activities, and they will control things such as meals, leisure time and bedtimes. This care is often what a person needs, but it can deprive people of their freedom, if they have not consented to it.
A person may be deprived of their liberty if they are being supervised and controlled on a continuous basis. This does not mean that someone needs to be watched and controlled 24 hours a day. If there are significant periods of the day where they are being watched and controlled, this could count as a deprivation of liberty.
Not free to leave
If a person is not free to leave the place where they are being cared for, they may be deprived of their liberty. It is important to note that this can be hypothetical. The person may not be physically able to leave by themselves, but the question is still the same – if they tried to leave, would they be stopped? If the answer is yes – ie they did not consent to this care and are not free to leave – then they are being deprived of their liberty.
The person lacks capacity to consent
The care a person receives can only deprive them of their liberty if they have not consented to it. If the person has freely chosen and consented to their situation, then they have not given up any of their freedom. A deprivation of liberty can only occur in cases where someone lacks the ability to decide themselves, known as ‘mental capacity’, where they will live and what care they will receive.
To have capacity to make a decision, someone must be able to:
- understand the information about the decision – in these cases, the options for care and living arrangements
- retain that information long enough to be able to make a decision
- weigh up the information available and understand the consequences of the decision
- communicate the decision – this could be by any possible means, such as talking, using sign language or even simple muscle movements like blinking an eye or squeezing a hand.