In what circumstances should a care provider apply for a deprivation of liberty order if a service user is too ill to leave the hospital? 

The attached article is a summary of the recent Court of Appeal judgment, that indicates that where someone’s own physical condition has the effect of depriving them of liberty, the care provider may not require a deprivation of liberty order for that person’s care.

Following the Cheshire West case we saw an explosion in the number of deprivation of liberty orders being sought by care providers. Last month we saw that coroners inquests are no longer compulsory for those without capacity who die in care. This most recent development, in this rapidly developing area of law, may serve to ease some of the pressure on providers and local authorities seeking to comply.

Requirements

The Court of Appeal said that a deprivation of liberty is not required where a patient’s own condition causes them to be deprived of their liberty, but they also went on to say that if that condition is the ‘root cause’ of the deprivation, then even if the treatment may contribute to the deprivation, no deprivation of liberty is needed. An important qualification was that the treatment must be materially the same as that which a person of sound mind would receive.

This means that even if the treatment or care that the service user is receiving does have the effect of depriving them of their liberty, if the person has an underlying condition which is the primary source, no deprivation of liberty is required.

Where someone without capacity is receiving the same treatment that any other patient would and if that treatment itself is not the main cause of them being deprived of their liberty, no deprivation of liberty is needed. Therefore providers need to think very carefully about the conditions that their service users have and whether it is the condition, rather than the treatment that has the effect of depriving the individual of their liberty.

Potential developments

However, it’s important to bear in mind that this case is subject to appeal, so we can expect further developments.

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