For some patients who lack capacity to consent, their level of need can be such that the treatment or care package is very invasive, restrictive or intrusive.  This may be the right thing to do, in their best interests, but increasing levels of restriction require both greater justification by reference to the harm that is avoided, as a matter of proportionality, and also more external scrutiny, to ensure that the person’s fundamental rights are being properly respected.

In most care settings, where the treatment / care package involves “continuous supervision and control” and the person is “not free to leave” in the sense of living somewhere else, then this is regarded in law as a “deprivation of liberty” (Article 5 of the European Convention on Human Rights, interpreted by the UK Supreme Court judgment in Cheshire West). There is, however, a significant exception to this test where a patient is receiving life-saving treatment for a physical condition which is materially the same treatment that would be administered to any patient, regardless of their capacity – in these circumstances the Court of Appeal has confirmed that there is no deprivation of liberty, in a case that concerned treatment in an Intensive Care Unit.

There is no power for an LPA or Deputy, or for the parents of adult children, to consent to any deprivation of liberty.

Where this happens in a care home or hospital, the Deprivation of Liberty Safeguards (DOLS) provide external scrutiny and, if appropriate, authorisation, by the local authority subject to regular review.  In other settings, including the patient’s own home, if the care package amounts to a deprivation of liberty for a patient who lacks capacity to consent to it then this can only be authorised by the Court of Protection.  There is now a streamlined process for this in uncontroversial cases, and it is the responsibility of the public body commissioning or delivering that care to apply to Court.

Remember that an application to authorise a deprivation of liberty, whether in Court or by DOLS, is not about imposing more restrictions, but rather recognition of the need for scrutiny of the level of restrictions already proposed or in place.