Positive obligations to protect against deprivation of liberty in the community

The Government's decision to delay the law changing the procedures for authorising a deprivation of liberty to at least the spring of 2022 requires nurses to ensure that individuals who lack capacity and are cared for in community settings are not being unlawfully deprived of their liberty by using the current procedure for identifying and authorising that deprivation of liberty (Samuel, 2020).

The Mental Capacity Act 2005, section 4A, does not provide a general power to deprive a person of their liberty. A deprivation of liberty is only lawful under the 2005 Act if it is authorised by either:

The Supreme Court judgment in Cheshire West and Chester Council v P [2014] introduced an inclusive test for determining a deprivation of liberty, particularly where that person was confined in a care setting for more than a negligible period of time. The Supreme Court further held that a deprivation of liberty could arise in care settings other than hospitals and care homes such as supported living, in a shared lives arrangement or even in a person's own home.