Book Review: Deprivation of Liberty – Collected Guidance (published by The Law Society)

It is unlawful to deprive a person of their liberty without proper authorisation. Deprivation of Liberty Safeguards were brought into force on the 1^st April 2009 under amendments to the Mental Capacity Act 2005, to protect people who lack mental capacity and are placed in settings such as residential care homes or hospitals for care or treatment and as a consequence of that care are deprived of their liberty.

In March 2014, the Supreme Court ruled in two cases P v Cheshire West and Chester Council and P & Q v Surrey County Council (2014) UKSC 19 (‘Cheshire West’) giving clarification of what a deprivation of liberty actually is and setting out an ‘acid test’. The consequences of Cheshire West have been wide and have led to a surge in applications for standard authorisations to comply with Article 5 (1) of the European Convention on Human Rights (‘ECHR’).This has caused no end of issues for Practitioners in the identification of a deprivation of liberty particularly as there is no specific statutory definition.

Purpose of the book

This book is the first collective guidance on this subject and brings together under one umbrella the Code of Practice of the Mental Capacity Act 2005 (Deprivation of Liberty Safeguards), the Law Society’s Practical Guide on identifying a Deprivation of Liberty and case law to February 2015. The book aims at guiding health, social care and legal professionals through  the complex web of legislation and case law in assessing whether a person who lacks the mental capacity to consent to their care and treatment  is deprived of their liberty or not.

Content

This publication was commissioned by the Department of Health and the authors view the guidance as an informal update to the ‘DOLS Code’, which itself provides a legal framework for the procedure that professionals must follow to obtain legal authorisation to deprive a person of their liberty for their care and treatment.

The guidance has been written to a high standard reflecting the skill of the authors who have a wealth of experience in advising and acting upon cases involving questions of deprivation of liberty. While the authors maintain that professionals must look at the DOLS Code of Practice and current case law  first, when assessing what circumstances amount to a deprivation of liberty, Practitioners should also use the guidance which details the most common settings to identify when a deprivation of liberty may occur.  This makes the guidance a great tool of reference for Practitioners in health, social care and law.

Structure and Layout

The book is divided into three main chapters:

The first chapter [A] deals with the identification of a deprivation of liberty and is sub-divided into three parts. Part 1 gives an overview of the law in relation to the identification of a deprivation of liberty and the key questions raised after Cheshire West notably the ‘acid test’. Part II deals with the specific care settings in which a deprivation of liberty may occur and Part III covers key cases relating to deprivation of liberty since 2009 (but have ‘health warnings’ in light of the decision of Cheshire West} and further resources.

Chapter [B] includes summaries of recent cases as they provide good examples of the application of the ‘acid test’ to particular factual situations. However, it should be noted that the cases are only effective up to February 2015 being the date of publication and this is an ever evolving area of the law which the authors point out in the preface.

Chapter [C] is headed ‘Further Guidance’ and includes further information and resources on the topic of deprivation of liberty set out in eleven appendices.

Each chapter has detailed sub-headings which make it easy for the reader to locate a particular topic. In Chapter [A] Part II there are good examples of the most common settings in which a deprivation of liberty may occur and the authors identify a number of ‘key factors’ that may point to or point away from a deprivation of liberty. This enables the Practitioner to consider carefully each set of circumstances and ask the requisite questions to identify a deprivation of liberty. I found this particular chapter of the book very useful as all the common settings are detailed from hospital settings to supported living and consequently the Practitioner can draw on those parts of the guidance that are most relevant  to the circumstances  that they encounter in practice.

The case summaries and further guidance in the final part is also very useful and sets out such publications as the Care Quality Commission Briefing on Deprivation of Liberty in Health and Social Care and Intensive Care Society Briefing on Deprivation of Liberty in Intensive Care – all very useful points of reference for the Practitioner to consider and all located in one place.

Tools

This publication will prove to be an invaluable authority to professionals in the assessment and identification of a deprivation of liberty and has a helpful and practical structure which means that Practitioners in health, social care and law of all technical levels can benefit from its contents.

Clarity and Readability

This collected guidance is written in a clear and practical manner and is concise in its commentary. I found the worked examples in Chapter [A] Part II excellent and as the authors specify in the preface ‘at the heart of the guidance’. The guidance assists the Practitioner in the interpretation of case law and legislation and most importantly the application in practice of the key factors which determine whether there has been a deprivation of liberty or not.

Relevance to Practitioners

In conclusion, this is a comprehensive book and provides a primary source of guidance in the assessment and identification of a deprivation of liberty across all the common settings. Practitioners in health, social care and the law will benefit immensely from this publication.