4.5.1 Deprivations of Liberty

AMENDMENT

This procedure was updated in February 2019.

1. Introduction

This procedure should be used by practitioners working with children and young people under the age of 18, where a deprivation of liberty may be occurring.

It applies to all social care practitioners carrying out any social care function with children who are receiving care or treatment in any setting.

As a social care practitioner you need to know:

Deprivations of liberty can occur in a range of settings, including:

  • The family home;
  • A foster placement;
  • A care home;
  • A hospital;
  • A shared lives scheme;
  • A school or college; and
  • A day centre or other place where the young person receives care or treatment away from their home.

2. Understanding What a Deprivation of Liberty is

Article 5 of the Human Rights Act states that 'everyone has the right to liberty and security of person and no one shall be deprived of his or her liberty unless in accordance with a procedure prescribed in law'.

A deprivation of liberty occurs when there has been a breach of a child or young persons' article 5 rights.

Deprivations of liberty requiring authorisation by a Court of Law that have not been authorised are:

  • Unlawful; and
  • A breach of a child or young person's basic human rights.

It is important to know that Deprivation of liberty is not the same as the Deprivation of Liberty Safeguards (DoLS). DoLS is the framework used to authorise deprivations of liberty when:

  • The person being deprived is 18 or over; and
  • They live in a care home or hospital.

The Deprivation of Liberty Safeguards framework does not apply to anyone under the age of 18.

3. Identifying Deprivations of Liberty

This section of the procedure applies to all social care practitioners carrying out any social care function with children and young people aged 16 and 17 years of age and under, who are receiving care or treatment in any setting.

3.1 Identifying a possible deprivation of liberty

If the following things all apply then it is likely that a deprivation of liberty is occurring:

  • The child or young person is 17 years of age or under;
  • The child (under 16 years of age only) is not 'Gillick competent' to consent to their care or treatment;
  • The young person (16 or 17 years of age) lacks the capacity to consent to their care or treatment. A mental capacity assessment (in line with the Mental Capacity Act, 2005) must be completed by the case holding practitioner and signed off by the Team Manager or Practice Manager;
  • The child or young person is under continuous supervision or control;
  • The child or young person is not free to leave the place where they are receiving care or treatment;
  • The care or treatment being received is imputable to the state; and
  • The level of deprivation is not comparable to the level of restriction normally placed on a non-disabled child or young person of that age.

3.2 Continuous supervision and control

Whenever care or treatment is provided there will probably be some element of supervision or control. For example:

  • The child or young person may require monitoring when taking their medication; or
  • They may have the nature of their food choices restricted due to a risk of choking.

Supervision and control is only deemed to be 'continuous' in nature if the overall impact on the child's or young person's life is significant.

The following are examples of situations when supervision and control is likely to be continuous:

  • The child or young person needs frequent or constant supervision for their safety;
  • The child or young person is only ever left on their own for short periods of time;
  • Most aspects of life are decided by others (e.g. what to wear, what to eat, when to get up or go to bed, how to spend their time);
  • The child or young person is not permitted to carry out everyday tasks (such as bathing) without the support of others;
  • The use of restraint or medication to routinely manage behaviour.

3.3 Not free to leave

A child or young person is not free to leave if they:

  • Are required to be there to receive the care or treatment; and
  • Would be prevented from leaving if they attempted to do so.

An important thing to remember about being 'free to leave' is that it does not matter whether the child or young person is asking or attempting to leave; what matters is the response that they would receive if they were to do so.

3.4 Imputable to the state

The detention will be 'imputable to the State'. However, there may be situations when this is not the case. Care and treatment is imputable to the state if:

  • It has been arranged or provided by the Local Authority; or
  • It has been arranged or provided by the NHS; or
  • A child's or young person's family has made their own arrangements for care, but if they didn't have the means to continue to do so the Local Authority would have (or be likely to have) a duty to meet their needs.

If practitioners become aware of a DoL situation and the care and/or treatment is privately arranged, the local authority may still have a responsibility to seek Court authorisation for the DoL. Where there is, or is likely to be, a deprivation of liberty in such arrangements it can only be legally authorised by the Court of Protection. Legal advice must be sought in order to establish the Local Authority's obligation to obtain court authorisation.

3.5 Not comparable deprivation

The child or young person is likely to be deprived of their liberty when the level of deprivation is greater than the level of restriction normally placed on a non-disabled child or young person of that age.

When care is being provided by the child's or young person's family in the family home, this judgement should be made in the context of that particular family, having regard to:

  • Their beliefs and values; and
  • The level of restriction placed on non-disabled siblings of a similar age; unless
  • The level of restriction being placed on non-disabled siblings is not deemed appropriate.

3.6 The difference between a deprivation of liberty and 'restrictive physical interventions'

There are 4 broad categories of restrictive physical intervention:

  • Restraint;
  • Holding;
  • Positive touching; and
  • Presence.

The 'Restrictive Physical Intervention' procedure provides information about each category, and the circumstances when it is appropriate to use restrictive physical intervention (see Restrictive Physical Intervention Procedure).

The use of a physical intervention does not surmount to a deprivation of liberty when:

  • The person providing care or treatment is using the restrictive physical intervention appropriately; and
  • The restrictive physical intervention is not used routinely as a method to manage behaviour.

If the restrictive physical intervention is being used routinely as a way to manage the child's behaviour it is likely that this surmounts to continuous supervision and control, which would then indicate that a deprivation of liberty may be occurring.

3.7 If a deprivation is occurring

To establish if a deprivation is occurring, an assessment of the circumstances (using the Deprivation of Liberty Assessment Form) must be completed by the practitioner working with the child or young person.

For children under 16 years of age, if it is believed a deprivation is occurring, a decision needs to be made about whether it is the least restrictive way to:

  • Provide the care or treatment required; and
  • Reduce the likely significant harm to the child.

See Section 4, Least Restrictive (under 16 years old) for guidance about determining whether a deprivation is least restrictive.

For young people 16 or 17 years of age, if it is believed a deprivation is occurring, a decision needs to be made about whether the deprivation is in the young person's Best Interest by applying the Best Interest principle.

See Section 5, Best Interests (16 and 17 year olds) for guidance about determining whether a deprivation is least restrictive.

4. Least Restrictive (under 16 years old)

4.1 Children under the age of 16

This section of the procedure should be used by practitioners when the following apply:

  • The child is under the age of 16; and
  • They are being deprived of their liberty; and
  • A decision needs to be made whether the deprivation is the least restrictive way to provide the care and treatment required and reduce likely significant harm.

4.2 Consulting with parents and those with parental responsibility

You must consult with the child's parents / carers (and any persons with parental responsibility) when deciding whether the deprivation is least restrictive.

4.3 Deciding whether the deprivation is least restrictive

To decide whether a deprivation of liberty is the least restrictive way of providing care and treatment and reducing likely significant harm you should:

  • Identify all other available options for providing the care or treatment; and
  • Identify all other available options for reducing likely significant harm; and
  • Explore the likely impact on deprivation of liberty of all the available options.

This will determine whether there is a less restrictive way of providing care or treatment and reducing likely significant harm.

4.4 If there is a less restrictive way

If there is a less restrictive way of providing care or treatment and reducing likely significant harm steps should be taken to review and amend any care or treatment plan (or the manner in which informal care is provided) so that:

  • The deprivation is no longer occurring; or
  • The deprivation that is occurring is least restrictive.

If the deprivation can be eliminated, yet the person providing care or treatment does not take steps to do so, a decision should be made to either:

  • Raise a safeguarding concern;
  • Raise a service provider concern; or
  • Apply to the Court (especially if there is disagreement about what is least restrictive).

The decision must be discussed with and agreed by the Team Manager. A record of the decision must be added to the child's electronic file.

4.5 When a deprivation requires authorisation

A deprivation requires authorisation by a Court of Law when:

  • The child's parents do not have the authority to agree to the deprivation; or
  • There is disagreement about whether the deprivation is the least restrictive way of providing care or treatment and reducing likely significant harm.

The process by which cases are prioritised are for progression to court is described in Section 7, Prioritising Cases of Deprivation.

5. Best Interests (16 and 17 year olds)

5.1 Children aged 16 and 17

This section of the procedure should be used to determine whether a deprivation of liberty is in the Best Interests of a young person aged 16 or 17.

5.2 Consulting with parents and those with parental responsibility

You must consult with the young person's parents / carers (and any other persons with parental responsibility) when deciding whether the deprivation of liberty is in their Best Interests.

5.3 Making a Best Interests decision

To make a best interests decision the principles of the Mental Capacity Act 2005 should be followed. See also: Mental Capacity Procedure, Making a Best Interests Decision.

5.4 If the deprivation is not in the young person's Best Interests

If, through the process of Best Interests decision making, it is agreed that the deprivation of liberty is not in the young person's Best Interests, steps should be taken to review and amend any care or treatment plan (or the manner in which informal care is provided) so that the deprivation is no longer occurring.

If the person providing care or treatment continues to do so in a way that deprives the young person of their liberty when it is not in their Best Interests to do so, a decision should be made to either:

  • Raise a safeguarding concern;
  • Raise a service provider concern; or
  • Apply to the Court of Protection (especially if there is disagreement about what is in the young person's Best Interests).

The decision must be discussed with and agreed by the Team Manager. A record of the decision must added to the young person's electronic file.

5.5 When a deprivation requires authorisation

A deprivation requires authorisation by a Court of law when:

6. When Parents Can Agree to a Deprivation

6.1 Children under the age of 16 who are not subject to a care or interim care order

If the child is not subject to a Care Order or Interim Care Order their parents can agree to the deprivation in the exercise of their parental responsibility so long as the deprivation of liberty is in the child's Least Restrictive.

6.2 Accommodated children under the age of 16

If the child is accommodated under Section 17 or Section 20 of the Children Act 1989, their parents can agree to the deprivation in the exercise of their parental responsibility, so long as:

  • The deprivation is in the child's Least Restrictive; and
  • The accommodation is not a prelude to child protection proceedings.

6.3 Young People aged 16 and 17

If the young person is accommodated under Section 17 or Section 20 of the Children Act 1989, their parents can agree to the deprivation in the exercise of their parental responsibility, so long as:

  • The deprivation is in the young person's Best Interests; and
  • The accommodation is not a prelude to child protection proceedings.

It should be acknowledged that case law is evolving in this area. You should always seek legal advice if the authority of a parent to agree to a deprivation of liberty is unclear.

7. Prioritising Cases of Deprivation of Liberty

The Deprivation of Liberty Case Prioritisation Tool must be used to identify which cases should be processed for court authorisation as a priority. Cases should be assessed by the case holding practitioner and agreed by the Team or Practice Manager. Cases assessed as a 'High Priority' must be processed for authorisation from the Court of Protection.

It is important to remember that circumstances can change and as a result, the priority status of a case may also change. If the case holding practitioner becomes aware of changes that affect circumstances, the case should be reassessed using the prioritisation tool.

8. Authorising Deprivations of Liberty

The process for court authorisation will either be undertaken as part of a) the Legal Planning Meeting and Gateway Panel process, or b) of direct communication with legal professional.

a) Legal Planning Meeting (LPM) and Gateway Panel

When accommodation for a child or young person and a DoL has been identified, authorisation for a DoL must be sought through the (LPM) and Gateway Panel process. The case holding practitioner must provide supporting evidence for the need for authorisation of the DoL in the documentation submitted for the Panel

b) Direct communication with Legal Professionals

If the case is not subject to LPM and Gateway Panel process, the case holding practitioner must, with the direction from the Practice or Team Manager, seek legal advice via the legal team duty desk.

Legal advice must always be sought if the appropriate route to authorise a deprivation of liberty is unclear – contact LGSS Law.

8.1 Principle routes of authorisation

There are 3 principle routes to authorise a Deprivation of Liberty:

  • The use of Section 25 of the Children Act 1989 (secure accommodation orders);
  • The inherent jurisdiction of the High Court under Section 100 (4) of the Children Act 1989; or
  • The Court of Protection.

Further information about each route is set out below.

8.2 Secure accommodation orders

A placement that deprives a looked after child in accommodation of their liberty can be authorised as part of a secure accommodation order for a period directed by the Court, or for as long as the Section 25 criteria are met, whichever is the shorter period.

To read more about secure accommodation orders - see Placements in Secure Accommodation on Welfare Grounds Procedure.

8.3 The inherent jurisdiction of the High Court

Before seeking an authorisation using the inherent jurisdiction of the High Court a decision should be made about which jurisdiction applies. This will depend on the specific circumstances of the young person and each case should be considered on its own facts.

If a child is under 16 and not subject to a care or interim care order, the High Court should be asked to authorise a deprivation when the decision made by their parents is not in the child or young person's Best Interests.

If a child or young person under the age of 18 is accommodated under Section 17 or Section 20 of the Children Act 1989, the High Court should be asked to authorise a deprivation when:

  • The decision made by their parents is not in the child or young person's Best Interests; or
  • The accommodation is a prelude to care proceedings.

Whenever a child or young person is subject to a Care Order or Interim Care Order, the High Court must always be asked to authorise a deprivation of liberty. This authorisation must take place before the deprivation occurs.

8.4 The Court of Protection

The Court of Protection is the Court of Law responsible for authorising a deprivation of liberty when:

  • The young person is aged 16 or over; and
  • The young person lacks capacity; and
  • The young person's parents do not have the authority to agree to the deprivation (see above); or
  • It is not the responsibility of the High Court to authorise the deprivation (see above).

To prevent the need for the involvement of multiple Courts, the Mental Capacity Act 2005 gives permission for a Family Court that is already involved in family proceedings to:

  • Make decisions regarding mental capacity; or
  • Transfer cases about mental capacity to the Court of Protection.

You must therefore establish whether:

  • There are on-going family proceedings in a Family Court; or
  • There is an existing Court Order made by a Family Court; and then
  • Notify your legal support as soon as possible; so that
  • Arrangements can be made to establish whether the Family Court will hear the matter.

You should only proceed to make the application to the Court of Protection if:

  • The Family Court declines to hear the case; and
  • The Family Court does not transfer the case to the Court of Protection.

Any application to the Court of Protection that you make in this situation should explain:

  • The on-going role of the Family Court; and
  • The reasons that the Family Court have provided about why they will not hear the case.

9. Expiration of Community Deprivation of Liberty Authorisation

Authorisation of a DoL can typically last for one year unless circumstances require a shorter period. The responsible practitioner should keep a record of this in the child's / young person's electronic file.

10. Advocacy

All cases judged to be a 'High Priority' (using the Deprivation of Liberty Case Prioritisation Tool) should be referred to the Advocacy Service – click here for further information and to make a referral. The allocation of an advocate will be decided on a case by case basis.