DoLS : What constitutes deprivation of liberty?
The deprivation of liberty safeguards (“DOLS”) were intended to provide protection for individuals who were deprived of their liberty previously using the common law. These addressed what was known as the Bournewood gap. One of the difficult issues for those caring for individuals who lack capacity is to identify when they are being deprived of their liberty.
The judgment in a recent case (Cheshire West and Chester Council v P  EWCA Civ 1257) will assist with this, although it may also have the effect of reducing the number of cases in which a DOLS authorisation is required.
P lived in a small group home that was not a care home and therefore not subject to the DOLS authorisation regime. As a result any deprivation of liberty required authorisation from the Court of Protection and an annual review by the court. P required high levels of personal supervision to manage risks associated with his behaviour. This included pulling apart continence pads and putting soiled pieces in his mouth. When this occurred two staff members intervened to remove the pieces and clean his hands. P’s care plan included wearing a body suit, which limited access to his continence pads. P claimed that these measures deprived him of his liberty.
At first instance, Baker J ruled that P, a man with cerebral palsy and downs syndrome who lacked capacity to make decisions about care and residence, had been deprived of his liberty. Although those caring for P had taken great care to ensure he had as normal a life as possible, the fact he was ‘completely under the control of members of staff’ and the steps required to deal with his behaviour meant he was deprived of his liberty. Cheshire West and Chester Council appealed the ruling.
Court of Appeal Decision
Munby, Lloyd and Pill LLJs did not agree with Baker J’s ruling. They reaffirmed the principles of the Court of Appeal in P& Q v Surrey County Council  EWCA Civ 190 where it was held here that an inquiry into whether a person is deprived of their liberty must consider the relative ‘normality’ of their situation. Munby LJ listed examples of deprivation of liberty in various ‘normal’ settings, as recorded in case law. Typically, care of children or vulnerable adults in a domestic setting, foster placement or small specialist services did not amount to a deprivation of liberty. When a person had somewhere else to go and wanted to live there but was prevented from doing so by a coercive exercise of public authority, it did amount to deprivation of liberty. Munby LJ emphasised that when interpreting the ‘normality’ of a setting, the relevant comparator was:
“…not with the previous life led by X (nor with some future life that X might lead) nor with the life of the ablebodied man or woman on the Clapham omnibus, but with the kind of lives that people like X would normally expect to lead. The comparator, in other words, is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations (call them what you will) as X. Likewise, in the case of a child the comparator is a child of the same age and development as X.”
Munby LJ discussed the deprivation of liberty in a domestic setting. This might include a husband who confined his wife to the house in order to enjoy his ‘conjugal rights.’ It would not include confining his wife who had dementia to the house to prevent her from wandering in front of a bus. The crucial factors to consider were the husband’s reasons, purpose and motives. In some limited circumstances improper motives or intentions could render what would otherwise not be a deprivation of liberty into one. However a good motive or intention could not render innocuous what would otherwise be a deprivation of liberty. Pill, Lloyd and Munby LLJ also considered under what circumstances the care of an incapacitated adult might satisfy the ‘objective element’ of deprivation of liberty under Article 5 ECHR.
It was decided that P’s disabilities meant his life was ‘inherently restricted’ and he would be subject to similar restrictions by those caring for him wherever he lived. The Appeal was therefore upheld. The court concluded that P had not been deprived of his liberty.
The Court of Appeal ruling in Cheshire offers greater clarity as to what circumstances amount to a deprivation of liberty. In many cases the use of the comparator test may well mean that the regime reflects "normality" for the individual and thus does not engage the need for an authorisation to approve any perceived deprivation of liberty (which in those circumstances will not constitute a deprivation but simply a restriction).
The judgment in Cheshire indicates that the availability of a Court Order or a DOLS authorisation for many vulnerable adults in institutional care settings will be reduced. A disabled or older person could, depending on their clinical presentation, face a very high level of control before they are eligible for the DOLS procedural safeguards. If the MCA 2005 permits restrictions on liberty which are proportionate and necessitated by a disability, it is now clear that the DOLS regime or review by the court of protection may well not be engaged.
 Cheshire West and Chester Council v P & Another  EWHC 1330 (COP) at paras  – 
 HL v UK, DE V JE and Surrey County Council, London Borough of Hillingdon v Neary
 para 97
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.