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Chapter 10 - Deprivation of Liberty

Published online by Cambridge University Press:  20 July 2023

Nick Brindle ,
Michael Kennedy ,
Christian Walsh  and
Ben Alderson
Nick Brindle
Affiliation:
Leeds and York Partnership NHS Foundation Trust
Michael Kennedy
Affiliation:
Switalskis Solicitors
Christian Walsh
Affiliation:
Leeds Beckett University
Ben Alderson
Affiliation:
Leeds and York Partnership NHS Foundation Trust
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Summary

When thinking about deprivation of liberty, we must look to Article 5 in the European Convention on Human Rights: the right to liberty and security. The first question is why would we want to deprive people with dementia of their liberty? The circumstances of providing care to a person with dementia may be that they lack capacity to consent to those arrangements. The aim of Article 5 is to ensure that no one should be deprived of their liberty in an arbitrary fashion and that it must be in accordance with a procedure prescribed by law. There must also be the right to challenge the legality of the detention by an independent court or tribunal. The legal considerations for practitioners are, therefore, is this person being deprived of his or her liberty and then, how should it be authorised? In authorising a deprivation of liberty, there may be a choice of legal schemes which could apply, and we will discuss the interface between the Deprivation of liberty/Liberty Protection Safeguards and the Mental Health Act. We will then discuss the amendments the Liberty Protection Safeguards will introduce. In the realm of dementia care, this is a highly significant area.

Keywords

deprivation of libertyDeprivation of Liberty SafeguardsLiberty Protection SafeguardsCheshire Westacid testMental Health Act/Mental Capacity Act interfaceResponsible BodyCourt of ProtectionIndependent Mental Capacity AdvocateApproved Mental Capacity Professional
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Chapter
Information
A Clinician's Brief Guide to Dementia and the Law , pp. 95 - 105
Publisher: Cambridge University Press
Print publication year: 2023

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