Sometimes it may be necessary when caring for somebody to reduce their independence or restrict their free will in some way. In hospital, since a daily routine will ordinarily be determined by the healthcare team, this often means that a person has not freely chosen where they will reside or what sort of care and treatment they will receive, therefore it is possible that this process will take away some of their freedom. In some cases, this may amount to a ‘deprivation of liberty’. This is not always a bad thing, and it is often necessary when caring for someone, and will only happen if it is in the person’s best interests.
Sometimes in hospital it may be necessary to make decisions for, restrict someone or decide a person’s routine in order to keep them safe so that the wider team can plan and provide the best possible care with the individual in mind. We always make sure that all the care a person receives involves as little restriction as possible. However, sometimes it will be necessary to take away some of the person’s freedom to provide them with the care they need.
In these situations, a deprivation of liberty occurs when:
‘The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements’.
Continuous supervision and control
The kind of care that people receive in hospital will usually involve both supervision and control. The team will monitor patients, they will decide activities, and they will control things such as meals, leisure time and bedtimes. This care is often what a person needs, but it can deprive people of their freedom, if they have not consented to it.
A person may be deprived of their liberty if they are being supervised and controlled on a continuous basis. This does not mean that someone needs to be watched and controlled 24 hours a day. If there are significant periods of the day where they are being watched and controlled, this could count as a deprivation of liberty.
Not free to leave
If a person is not free to leave the place where they are being cared for, they may be deprived of their liberty. It is important to note that this can be hypothetical. The person may not be physically able to leave by themselves, but the question is still the same – if they tried to leave, would they be stopped? If the answer is yes – i.e. they did not consent to this care and are not free to leave – then they are being deprived of their liberty.
Lacking capacity to consent
The care a person receives can only deprive them of their liberty if they have not consented to it. If the person has freely chosen and consented to their situation, then they have not given up any of their freedom. A deprivation of liberty can only occur in cases where someone lacks the ability to decide themselves, known as ‘mental capacity’, where they will live and what care they will receive.
To have capacity to make a decision, someone must be able to:
If a situation arises where a person may need to be deprived of their liberty during an inpatient spell, the healthcare team must seek permission. To do this, there is a strict process that must be followed known as the Deprivation of Liberty Safeguards. DoLS are a set of checks designed to ensure that a person who is deprived of their liberty is protected, and that this course of action is both appropriate and in the person’s best interests.
The DoLS also offers protection to ensure that, when someone’s freedom is restricted, it is both in their best interests and, where possible, done in the least restrictive way.
The key components of these safeguards are: