The Deprivation of Liberty Safeguards Part 6: definition of deprivation of liberty

Her Honour Nasreen Pearce
Retired Circuit Judge

District Judge Sue Jackson
Nominated Judge of the Court of Protection

Although detention and restraint of those who lack capacity (P) may be considered necessary in their best interests in some circumstances by those who have the obligation of providing care it may nevertheless infringe P's rights under Art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention) unless it is carried out in accordance with law (a deprivation of P's liberty).

The Mental Capacity Act 2005 (MCA 2005) provides the legal process which must be followed to render this lawful but fails to define what amounts to deprivation of liberty (DOL). Decision makers be they carers or those who advise the providers of care or those who protect P's rights have to routinely agonise over when it could be said that the fine line between acts which may be considered legitimate restraint and those which amount to DOL has been crossed. This involves a trail through case -law for guidance.

Read the full article here.