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.
Deprivation of liberty
The European Court of Human Rights requires that nurses consider three elements when determining whether a person is being deprived of their liberty:
Objective element
Determining whether the care of a person amounts to a deprivation of liberty is a fact-sensitive decision. Every person's case is different and so the starting point must be the specific circumstances of the person's situation (Cheshire West and Chester Council v P [2014]). The question is: does the care and treatment provided to the person in their best interests include restrictions that amount to an objective deprivation of liberty?
The Supreme Court in Cheshire West and Chester Council v P [2014] held that the acid test in such cases was whether the patient was under continuous supervision and control and was not free to leave. All three parts of the test must be present for the objective element to be satisfied (HL v United Kingdom (45508/99) (2005)).
Continuous supervision and control
The threshold for what amounts to continuous supervision and control was set relatively low in Cheshire West and Chester Council v P [2014].
In A local authority v AB [2020] the Court of Protection held that a woman subject to guardianship under the Mental Health Act 1983, section 7, was objectively deprived of her liberty despite the appearance that she had free rein to come and go from her flat in a supported living complex. The Court held that the woman was subject to continuous supervision and control because:
Subjective element
The European Court of Human Rights held in HL v United Kingdom (45508/99) (2005) that even where restrictions that amount to an objective deprivation of liberty are present a person is not to be considered deprived of their liberty if they have decision-making capacity and consent to those restrictions. Where a person lacks capacity to decide on accommodation to receive care and treatment, then they cannot consent to the confinement (PCT v LDV & Others [2013]).
Imputable to the state
For a deprivation of liberty to occur the restrictions must be imposed by or on behalf of the state or its organisations such as the NHS (HL v United Kingdom (45508/99) (2005)). Nurses working in community settings must be aware that state responsibility for restrictions amounting to a deprivation of liberty can be direct and indirect. In both cases, a duty to seek authorisation of a deprivation of liberty by the Court of Protection arises.
In Storck v Germany [2005], the European Court of Human Rights held that the state and so the NHS can be responsible for a deprivation of liberty in three ways:
Direct imputability
In their guidance on deprivation of liberty, the Law Society (2019) argued that there is likely to be sufficient state involvement in the care of a person in the community to bring it within the scope of the right to liberty under Article 5 of the European Convention on Human Rights (ECHR) (Council of Europe, 1950) and require authorisation by the Court of Protection if:
Indirect imputability
Indirect state responsibility reflects Article 1 of the ECHR (Council of Europe, 1950), which requires the state to secure convention rights and freedoms in its domestic law to everyone within its jurisdiction. In respect of the right to personal liberty, the first sentence of Article 5(1), that everyone has a right to liberty and security of person, imposes a positive obligation on the state to protect all of its citizens against interferences with their liberty, whether by state agents such as the NHS or by private individuals.
Positive obligations imposed by Article 5
In A Local Authority v A (A Child) & Anor [2010], the Court considered whether the care by their parents of a child and of an adult amounted to a deprivation of liberty. Both individuals were being locked in their bedroom at night for their own safety by their parents. In both cases, the local authority was aware of the night-time arrangements.
It was held that, where a public authority knows or ought to know that a vulnerable child or adult is subject to restrictions on their liberty by a private individual that may give rise to a deprivation of liberty, positive obligations are triggered, including:
The Law Society (2019) has advised that, where decisions have been taken on the person's behalf by a best interests decision-making process involving the NHS, NHS staff may have a positive obligation to ensure any deprivation of liberty arising from that process is authorised by the Court of Protection.
More recently, in A local authority in Yorkshire v SF [2020], it was held that once the Court became aware of an objective deprivation of liberty in a case before it then that also gave rise to indirect imputability by the state.
Conclusion
The decision of the Supreme Court in Cheshire West and Chester Council v P [2014] requires nurses to apply a more inclusive test for determining whether a person is being deprived of their liberty. The Supreme Court also made clear that a deprivation of liberty could occur in community care settings, such as supported living, shared lives placements and even a person's own home.
A deprivation of liberty now occurs where the care arrangements for a person in a community setting, including in their own home, objectively result in the person being under continuous supervision and control and not free to leave; subjectively unable to consent to the restriction because of a lack of decision-making capacity and the restrictions being directly or indirectly imputable to the state.
Where the care arrangements are mainly provided by family, friends or informal carers, then the NHS is unlikely to be directly responsible for the arrangements; however, there may be an indirect responsibility to protect the vulnerable person through the positive obligation arising from the right to liberty under Article 5. This means that there will be a duty to investigate, provide services to reduce the restrictions and, if an objective deprivation of liberty persists, to take the matter to the Court of Protection for authorisation.