What is Deprivation of Liberty?

Article 5 of the European Convention on Human Rights (shortened to ECHR) states that “everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty [unless] in accordance with a procedure prescribed in law”.

Under English law, a vulnerable person can be deprived of their liberty when it is necessary. This is in circumstances where they are assessed to lack capacity to make decisions in relation to where they live and receive care and support, and in order to keep them safe from harm. In these circumstances, it is really important that a person’s care package is as least restrictive as possible. 

In 2014, the Supreme Court ruled on the legal test for a deprivation of liberty, calling this the 'acid test'. This test outlines whether a person is being deprived of their liberty. 

If someone is:

1. Subject to a high level of supervision (i.e. over 24 hours a day);
2. Not free to leave the premises permanently (i.e. they cannot leave without staff support or would be brought back to the premises); 
3. Has restrictions and limitations placed on their movements (i.e. cannot access certain parts of the premises);  and 
4. Has decisions made for them against their wishes (i.e. where they live in a care home but would like to live in their own property).

Then it is highly likely that they are being deprived of their liberty.