Identifying a deprivation of liberty: a practical guide – updated Law Society guidance (and walkthrough)

Ahead of the 10th anniversary on 19 March 2024 of the Supreme Court decision in Cheshire West, the Law Society has updated its practical guidance on identifying a deprivation of liberty.

Since the publication of the original guidance in 2015, there have been important developments in the law relating to deprivation of liberty, including clarification of the position of:

  • those under 18
  • those in receipt of life-sustaining medical treatment

For several years, it had been anticipated that these developments would be reflected in an updated version of the statutory Code of Practice.

However, with the announcement of an indefinite delay to the implementation of the Liberty Protection Safeguards (LPS) in April 2023, there is no immediate prospect of an updated code to accompany the LPS.

This guidance draws together the assistance that can be found in the case law and from the practical experience of the authors who, in different contexts, advise upon and act in cases involving questions of deprivation of liberty.

It includes an overview of the legal framework, including the special considerations relating to those under 18.

The guidance applies that framework to different settings:

  • hospitals
  • psychiatric care
  • care homes
  • supported living/shared lives/extra care
  • at home
  • palliative care and hospices

For each setting, a list of potentially ‘liberty-restricting’ factors are given that may indicate that a deprivation of liberty is occurring.

Scenarios are also given, which illustrate:

  • a deprivation of liberty
  • a potential deprivation of liberty depending on the circumstances
  • a situation unlikely to amount to a deprivation of liberty

Each chapter concludes with a list of questions that professionals can ask themselves whenever they are confronted with a situation which may amount to a deprivation of liberty.

You can download the whole guidance, or as individual chapters covering specific care settings.

You can also download quick reference guides for each setting.

All of the above can be found here.  I have done a walkthrough of the key points:



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