Please note: The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019 and proposed a new system for protecting people aged 16 years and above who lack capacity to consent to care and treatment and who need to have their liberty deprived. However, in April 2023, the Department of Health and Social Care announced that the LPS will not now be implemented before the next General Election (which must be held, by law, no later than 28 January 2025).

1. Introduction

Deprivation of liberty outside a hospital or registered care home setting is also known as deprivation of liberty in a domestic setting.

Applications to authorise a deprivation of liberty in the community are made to the Court of Protection (contact the local authority’s legal department for more details). In most cases the authorisation is a paper-based application that should not require a court hearing.

Practitioners will also need to know whether the person who has a care package at home or in supported living, may be deprived of their liberty through their care plan – that is, do they meet the ‘acid test’ as described in Section 2, The Acid Test?

  • If, after consideration, the person meets the ‘acid test’, practitioners will need to make the application for a Deprivation of liberty which can only be authorised by the Court of Protection.
  • Practitioners should let their manager know that they are working with a person who may be deprived of their liberty. This is important as all referrals to the Court of Protection need to be sent via the relevant legal team and there is a cost involved.
  • Practitioners should follow the relevant guide from their legal department to make a Deprivation of Liberty as soon as possible.
  • It is possible for more than one application to be made to the Court of Protection at a time and the court is currently able to accept numerous applications at the same time.
  • It is important that a person who has a Deprivation of Liberty authorisation in the community also has a Representative (COP Rule 1.2 part 3a); this person is appointed by the Court.

2. The Acid Test

In its 2014 ruling, the Supreme Court made clear that there is a deprivation of liberty where the person:

  • is under continuous supervision and control (all three of these are necessary) ; and
  • is not free to leave;
  • lacks mental capacity to consent or agree to these arrangements; and
  • whose confinement is the responsibility of the government.

This means that if a person who lacks capacity to consent to this is subject to both continuous supervision and control and are not free to leave they are deprived of their liberty.

The following factors are not relevant to deciding if there is a deprivation of liberty:

  • the person’s compliance / agreement or lack of objection;
  • the reason or purpose behind a particular placement; and
  • the extent to which it enables them to live a relatively normal life for someone with their level of disability.

See also Deprivation of Liberty Safeguards: At a Glance (SCIE) 

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