The Law Society has published detailed guidance relating to “deprivation of liberty”, an important but not very well publicised subject.

Many people who lack mental capacity are looked after in situations where their daily life is quite strictly controlled and in particular where they are not allowed freely to leave their place of residence. For example an elderly person in a Care Home may be confused and at risk were they simply to walk out of the Home and on to the street. In practice therefore many institutions offering care have systems which prevent a resident leaving the building without the assistance of  a member of staff. This is an example of something which might amount to a “deprivation of liberty” under the terms of the Mental Capacity Act 2005.

In recent cases the Supreme Court has adopted what some think is quite a low threshold for finding that “deprivation of liberty” has occurred. This is important because deprivation of liberty is unlawful and a contravention of the Human Rights Act unless it is properly authorised. Everyone interested in the subject and in particular those involved with the care of persons lacking capacity should review the Law Society’s guidance, which is helpful overview of the relevant law and its application as presently understood