‘everyone has the right to liberty [freedom] and security [safety] of person [the individual]. No one shall be deprived of his or her liberty [unless] in accordance with a procedure prescribed in law’.
The Deprivation of Liberty Safeguards is the procedure set in law when it is necessary to deprive an individual of their liberty an individual (resident or patient) who lacks capacity to consent to their care and treatment in order to keep them SAFE FROM HARM.
In March 2014 the Supreme Court made a judgment that referred to the ‘acid test’. The ‘acid test is the name given to these two questions:
Is the individual subject to continuous supervision and control? and
Is the individual free to leave? – the important part of this question is the focus being not on whether a person seems to be wanting to leave, but on how those who support them would react if they did want to leave.
If an individual is supervised, and is not free to leave, then it is likely that they are being deprived of their liberty [freedom]. But even with the ‘acid test’ it can be difficult to be clear when the use of restrictions and restraint in someone’s support crosses the line to depriving a person of their liberty. Each individual must be considered on his/her own merits, but in addition to the two ‘acid test’ questions, if the following features are present, it would make sense to consider a deprivation of liberty application:
frequent use of sedation/medication to control behaviour
regular use of physical restraint to control behaviour
the person concerned objects verbally or physically to the restriction and/or restraint
objections from family and/or friends to the restriction or restraint
the person is confined to a particular part of the establishment in which they are being cared for
the placement is potentially unstable
possible challenge to the restriction and restraint being proposed to the Court of Protection or the Ombudsman, or a letter of complaint or a solicitor’s letter
the person is already subject to a deprivation of liberty authorisation which is about to expire.