Deprivation of liberty

The MCA, as described so far, makes it clear that it cannot authorise a person to be deprived of their liberty. In April 2008, the Deprivation of Liberty Safeguards (DoLS) were added to the MCA. The purpose was to resolve the incompatibility between English and Welsh law and European law established by the European Court of Human Rights case known as ‘Bournewood’ (more properly HL v United Kingdom). The DoLS provide a procedure for authorising deprivation of liberty, as required by Article 5 of the European Convention on Human Rights, in particular situations:

The DoLS provisions provide an additional legal framework that affords greater protection for mentally incapacitated people who require a high level of care, whether in hospital or elsewhere, but who fall outside the scope of the MHA. The DoLS scheme authorises detention in a range of situations and for a variety of purposes. However, the first consideration is what constitutes a deprivation of someone's liberty? The previous edition of this book discussed in some detail how case law had developed to inform the factors that clinicians and others must consider in order to recognise, and if possible prevent, deprivation of liberty. There was no statutory definition of the concept and, although there was guidance in the DoLS Code of Practice, the emergent cases were unable to resolve the ambiguity.