A Practical Guide to the Law of Deprivation of Liberty

When arrangements are made for someone, in their best interests, that amount to a deprivation of their liberty - for example placing someone in a care home against their wishes - how does the law protect their rights?

The law in this vital area has been a mess. In 2014, a parliamentary committee described the current legal framework - the ＂Deprivation of Liberty Safeguards＂ (DoLS) - as not fit for purpose, and that was before a Supreme Court judgment (Cheshire West) just a few days later meant that the system has been overwhelmed with vastly more cases than it was built or resourced for.

In 2019, legislation was passed with the bare bones of a new system, the Liberty Protection safeguards (LPS), to replace DoLS. But despite a consultation in 2022 on a draft Code of Practice which added some detail, it has now been announced that the LPS will not be implemented before the next general election (expected to be in late 2024), and so in practice may well never be implemented at all.

Without those long awaited reforms, we will still have to work with the old system, and all the problems it had that LPS was supposed to fix, notably:

• That DoLS does not apply beyond care homes and hospitals, and so anyone deprived of their liberty in other settings, such as their own family home, or supported living, can only have this authorised by a court order;
• Similarly, DoLS only applies over the age of 18, but this leaves a gap for 16-17 year olds where, again, court orders are needed to authorise any deprivation of liberty, as the courts have only recognised parental consent to avoid a deprivation of liberty where the child is under 16; and
• Even where the DoLS system does apply, over 18 and in care homes and hospitals, there is a colossal mismatch between the system’s resources and the workload, with backlogs of a year or more for authorisations to be processed, and tens of thousands of people unlawfully deprived of their liberty.

This book will look at:

• The background and context to the law on deprivation of liberty
• Article 5 of the European Convention of Human Rights
• The Bournewood case and the birth of DoLS
• Cheshire West, the definition of a deprivation of liberty, and how this has applied in a range of settings from the family home to residential care and hospital
• How DoLS works in practice, including the key safeguards
• Deprivation of liberty for children and young people
• Court applications for deprivation of liberty in the community
• The interface between DoLS and the Mental Health Act
• Consequences and compensation for an unlawful DoL
• The Law Commission’s review of DoLS, the evolution of the LPS and how it would have worked, and the prospects of reform now; and
• Making the best of the system we have for now.

ABOUT THE AUTHOR

Ben Troke is a solicitor and a mediator with 25 years’ experience working in health and social care, acting for the NHS and private sector providers all over the country. His particular interest is in decisions about mental capacity, medical treatment and deprivation of liberty, and he regularly deals with urgent applications to court in emergency situations.

Ben is independently rated as one of the leading practitioners in the country in the Court of Protection. He currently sits on the Law and Ethics Policy Unit of the Faculty of Intensive Care Medicine, and the Law Society’s Mental Health and Disability Committee, and has a decade of experience of sitting on the ethics of clinical practice committee of a large acute NHS Trust.

Ben is a regular speaker at conferences nationwide and often provides training, in person and online.