Deprivation of Liberty Orders: Court of Protection Authorisation Routes

Deprivation of Liberty Orders (DoLS) represent a critical intersection of clinical care, human rights, and the law. For UK solicitors acting in clinical negligence, personal injury, CICA claims, or inquests, a thorough understanding of these orders and the authorisation routes through the Court of Protection is essential. These provisions, primarily under the Mental Capacity Act 2005 (MCA 2005), safeguard the rights of individuals who lack the capacity to make specific decisions about their care or treatment and who are being deprived of their liberty in a hospital or care home setting.

Medico-legal cases frequently involve scrutiny of whether an individual’s liberty was lawfully restricted, whether capacity assessments were robust, or whether less restrictive alternatives were appropriately considered. The correct identification and instruction of an expert witness, often from psychiatry, neurology, or geriatric medicine, can be pivotal in determining the merits of such a claim.

Understanding Deprivation of Liberty Orders (DoLS)

The concept of a deprivation of liberty order gained prominence following the Supreme Court’s judgment in P v Cheshire West and Chester Council [2014]. This case established the ‘acid test’ for determining when a person is deprived of their liberty: an individual is deprived of their liberty if they are ‘under continuous supervision and control’ and ‘not free to leave’, and they lack the mental capacity to consent to these arrangements.

The legal framework for authorising such deprivations, prior to the implementation of the Liberty Protection Safeguards (LPS), largely rests with the DoLS framework. This framework applies specifically to hospitals and care homes registered under the Care Standards Act 2000. It provides a structured process for supervisory bodies (usually local authorities) to authorise arrangements that amount to a deprivation of liberty, ensuring compliance with Article 5 of the European Convention on Human Rights (ECHR), the right to liberty and security.

From a medico-legal perspective, disputes often arise concerning whether the conditions for a deprivation of liberty were met, whether the necessary authorisations were sought in a timely manner, or whether the arrangements amounted to an unlawful detention. Expert opinion, particularly from consultant psychiatrists specialising in areas such as old age psychiatry, learning disability psychiatry, or general adult psychiatry, is often required to assess the patient’s capacity, the appropriateness of the care setting, and the necessity of the restrictions imposed.

Assessing Capacity and Best Interests in DoLS Contexts

Central to any deprivation of liberty order is the assessment of mental capacity, as defined by the MCA 2005. The Act establishes a two-stage test: first, whether the person has an impairment of, or a disturbance in the functioning of, the mind or brain; and second, whether that impairment or disturbance means the person is unable to make a specific decision when they need to. This inability to make a decision can manifest in several ways: inability to understand information, inability to retain information, inability to use or weigh information, or inability to communicate a decision.

If a person lacks capacity, any decisions made on their behalf must be in their ‘best interests’. The MCA 2005 provides a best interests checklist, requiring decision-makers to consider all relevant circumstances, encourage participation, ascertain the person’s wishes and feelings, consult with others, and consider less restrictive options. For example, in cases involving individuals with severe dementia, a consultant geriatrician or old age psychiatrist may be best placed to opine on the nuances of their cognitive impairment, its impact on specific decision-making capacity, and their likely wishes regarding a particular care placement.

Common pitfalls in clinical practice, which often form the basis of a clinical negligence claim, include:

• A failure to conduct a proper capacity assessment in accordance with the MCA 2005 principles.
• Making decisions based on perceived best interests without adequate consultation or consideration of the individual’s past wishes.
• Implementing restrictive practices without exploring less restrictive alternatives.
• Delayed or absent applications for a deprivation of liberty order when the criteria are clearly met.

Experienced expert witnesses can scrutinise the clinical records, care plans, and contemporaneous capacity assessments to determine whether there has been an alleged breach of duty in applying the MCA 2005 principles.

Authorisation Routes and Court of Protection Practice

While the DoLS framework provides a mechanism for authorising deprivations of liberty in hospitals and care homes, the Court of Protection has a broader and ultimate jurisdiction. The Court of Protection is the designated body for making decisions and appointing deputies for people who lack mental capacity to make their own decisions. Applications to the Court of Protection are necessary in several scenarios:

• When an individual is deprived of their liberty in a setting not covered by DoLS, such as their own home with a package of care, supported living accommodation, or within certain types of residential facilities.
• Where there is a dispute regarding an individual’s capacity, best interests, or the appropriateness of a proposed deprivation of liberty.
• For urgent authorisation of a deprivation of liberty, pending a full DoLS assessment or a Court of Protection order.
• For complex medical treatments, particularly those with significant risks or ethical considerations, where the individual lacks capacity.

The Court of Protection’s role is to ensure that any deprivation of liberty is both necessary and proportionate to the risks faced by the individual, and that it is in their overall best interests. This often involves a detailed review of medical evidence, social care reports, and independent mental capacity advocate (IMCA) input. Legal professionals instructing experts will need to consider the specific questions posed by the Court, which may extend beyond traditional breach and causation analyses to encompass a broad welfare jurisdiction.

For instance, where a patient with complex neurological impairments, perhaps following a traumatic brain injury, requires a specific restrictive placement, a consultant neurologist or neuropsychologist may provide vital evidence on the nature of their cognitive deficits and their impact on decision-making, while a consultant occupational therapist could advise on alternative, less restrictive community living options. Multi-disciplinary expertise can address such complex, intersecting needs.

The Role of the Medico-Legal Expert

In cases involving deprivation of liberty, a medico-legal expert provides impartial, court-compliant opinions under CPR Part 35. The nature of the expert’s report will depend on the stage and specific questions of the litigation:

• Breach of Duty reports: These assess whether healthcare professionals or care providers failed to comply with their duties under the MCA 2005, for example, by not seeking timely authorisation for a deprivation of liberty, or by conducting a flawed capacity assessment. The expert will apply the Bolam v Friern Hospital Management Committee [1957] and Bolitho v City and Hackney Health Authority [1998] tests to ascertain whether the alleged actions fell below a reasonable standard of care.
• Causation reports: These address whether any alleged breach caused harm to the patient, for instance, by prolonged unlawful detention, or by receiving care not aligned with their best interests. The ‘but-for’ test from Barnett v Chelsea and Kensington HMC [1969] or the ‘material contribution’ test from Bailey v Ministry of Defence [2008] may be relevant here.
• Condition & Prognosis reports: An expert may be asked to comment on the psychological or physical impact of an unlawful deprivation of liberty, or the long-term implications of care provided under an inappropriate authorisation. This might involve a consultant psychiatrist assessing the impact on mental health, or a neurologist commenting on the progression of a neurodegenerative condition within a specific care environment.
• Inquest reports: If a death occurs while an individual is subject to a deprivation of liberty order, an inquest report may be required to assist the Coroner in understanding the circumstances and whether any systemic failures contributed to the death, often with reference to Article 2 ECHR, the right to life. Regulation 28 of the Coroners (Investigations) Regulations 2013 on Prevention of Future Deaths reports is also highly pertinent.

The selection of the appropriate expert subspecialty is crucial. A case involving an elderly patient with Alzheimer’s disease will benefit from an old age psychiatrist or geriatrician, whereas a young adult with a severe learning disability and challenging behaviour would require a consultant learning disability psychiatrist. Where the underlying condition is primarily neurological, such as a severe stroke or advanced Parkinson’s disease, a neurologist may be required to assess the extent of cognitive impairment and its impact on capacity. Matching instructing solicitors with the precise subspecialist, or combination of subspecialists, is essential to address the unique complexities of each case.

Practical Guidance for Solicitors

When dealing with cases that involve alleged deprivation of liberty, early instruction of an expert is often advantageous. Solicitors should consider the following:

• Identify the core dispute: Is it about capacity assessment, best interests decisions, the lawfulness of the deprivation, or the consequences of an unauthorised detention? This will help determine the required expert subspecialty.
• Provide comprehensive documentation: This should include all medical notes, care plans, capacity assessments, DoLS authorisation forms, Court of Protection orders, statements from family and care staff, and any IMCA reports.
• Formulate specific questions: Clear, precise questions for the expert will ensure the report directly addresses the legal issues. For example, ‘Did the assessment of capacity on [date] meet the standards expected of a reasonably competent [specialty] clinician?’ or ‘Were the arrangements for [patient’s name] in [care home] proportionate and the least restrictive necessary, having regard to their best interests?’.
• Consider multi-disciplinary input: Many DoLS cases have overlapping psychiatric, neurological, and social care elements. For example, a patient with dementia (psychiatric) who has also suffered a stroke (neurological) and whose care plan involves complex physical and behavioural management requires a nuanced, often multi-disciplinary, assessment.

Understanding the intricacies of the deprivation of liberty order framework, and its interface with clinical practice and the Court of Protection, is a specialist area. Robust expert evidence is indispensable for navigating these complex medico-legal landscapes.