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Understanding mental capacity
Understanding mental capacity

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2.3 Deprivation of liberty

It is not unusual for many people with learning disabilities to be deprived of their liberty, in that they are not free to choose where they live, who they see or where they go. In most democratic societies, such deprivations are exceptional and subject to substantial legal protections, including for people with learning disabilities. 

Bournewood psychiatric hospital is situated in Chertsey, Surry. HL, an autistic adult male with profound learning disabilities, was admitted voluntarily to the hospital in July 1997. However, due to his substantial lack of mental capacity, he was not in a position to provide consent to his admission. While he did not make subsequent attempts to leave, the medical staff believed it was in his best interests to remain in hospital. They did not allow his foster carers to visit him in case they discharged him home.

In response, the foster carers commenced legal proceedings. This resulted in the legal judgement that HL had been illegally deprived of his liberty, even though HL himself had not attempted to leave; this became known as 'the Bournewood gap'. The judgement highlighted the situation for many compliant but incapacitated adults in care homes and hospitals, andare now an amendment of the Mental Capacity Act 2005 in England and Wales.. New provisions known as the ‘deprivation of liberty safeguards’ (DoLS) were incorporated and came into force in April 2009.

Later clarification of the deprivation of liberty was provided by a case known in shorthand as Cheshire West (2014). This case established that assessing whether someone is deprived of their liberty comprises two central questions, referred to as the ‘acid test’:

  1. Is the person subject to continuous supervision and control?
  2. Is the person free to leave?

These questions are not subject to whether the person is compliant with or objects to their situation, or to the placement’s relative normality, or to the reason for the particular placement. If the two elements of the acid test are judged to be true, then the person is deprived of their liberty.