The Deprivation of Liberty Under Article 5 (AQA A-Level Law): Revision Notes
The Deprivation of Liberty Under Article 5
Understanding Article 5 and deprivation of liberty
Article 5 of the European Convention on Human Rights (ECHR) protects the right to liberty and security of the person. This fundamental right ensures that individuals cannot be detained or have their freedom restricted arbitrarily by the state.
Beyond traditional police powers of arrest and detention, a person's liberty can be restricted in situations involving mental capacity. When an individual lacks the ability to make informed decisions about their own care and treatment, the state may need to intervene. However, such intervention must comply with strict legal safeguards to protect the individual's Article 5 rights.
The concept of deprivation of liberty refers to restrictions on personal freedom that are so significant they amount to a violation of Article 5. Not every restriction constitutes a deprivation of liberty - the law distinguishes between minor restrictions and those serious enough to engage Article 5 protections. Understanding where this line is drawn is crucial for ensuring vulnerable individuals are protected while receiving necessary care.
The distinction between a simple restriction of liberty and a deprivation of liberty is critical in law. Minor restrictions (such as locked doors at night in a care home) may not engage Article 5, whereas more substantial restrictions that meet the acid test will require legal authorisation.
The Court of Protection and mental capacity
The Court of Protection was established under the Mental Capacity Act 2005 as a specialist court with jurisdiction over both personal and financial matters. This court makes decisions on behalf of citizens who lack the mental capacity to make rational decisions for themselves.
The Court of Protection plays a vital role in authorising deprivations of liberty that are in a person's best interests. It provides judicial oversight to ensure that any restrictions on liberty are proportionate, necessary, and lawful under Article 5.
The Court of Protection is unique in that it deals with both personal welfare matters (such as where a person should live and what medical treatment they should receive) and financial matters (such as managing property and affairs). This comprehensive jurisdiction allows for holistic decision-making for vulnerable individuals.
The acid test for deprivation of liberty
The Supreme Court established a clear framework for determining when a person is deprived of their liberty in two landmark cases: P v Cheshire West and Chester Council and another (2014) and P and Q v Surrey County Council (2014). These cases created what is known as the acid test - a three-part test that must be applied to determine whether Article 5 is engaged.
The three elements of the acid test
An individual is considered to be deprived of their liberty under Article 5 when all three of the following conditions are met:
1. Lack of capacity to consent
The person must lack the mental capacity to consent to their care or treatment arrangements. This means they cannot understand, retain, use or weigh the relevant information needed to make decisions about their care, or cannot communicate their decision. Mental capacity is assessed under the Mental Capacity Act 2005 principles and is decision-specific - a person may have capacity for some decisions but not others.
Decision-specific capacity means that a person might have the capacity to decide what to eat for breakfast but lack capacity to decide where to live. Each decision must be assessed separately based on the complexity of the information involved and the person's cognitive abilities at that time.
2. Continuous supervision and control
The individual must be under continuous supervision and control by care providers or the state. This means there is constant oversight of the person's activities and movements. The supervision must be ongoing rather than occasional or intermittent. This element recognises that constant monitoring, even if well-intentioned, significantly restricts personal autonomy.
3. Not free to leave
The person must not be free to leave their care setting or living arrangements. This does not require that they have attempted to leave or expressed a desire to do so. The question is whether they would be prevented from leaving if they tried. Even if a person appears content with their situation, they may still be deprived of liberty if they would be stopped from leaving.
Application of the test
All three parts of the acid test must be satisfied for a deprivation of liberty to exist. If even one element is absent, there is no deprivation of liberty under Article 5, though there may still be restrictions on the person's freedom that require justification under other legal frameworks.
The Supreme Court emphasised that the test is objective and does not depend on:
- The person's compliance or contentment with the arrangements
- The relative normality of the placement
- The purpose or intentions behind the restrictions (even if motivated by care and protection)
This means that even well-meaning care arrangements in pleasant settings can amount to a deprivation of liberty if the three conditions are met.
Common Mistake to Avoid:
Students often incorrectly assume that if a person is happy in their care setting or the environment is pleasant and home-like, there cannot be a deprivation of liberty. This is wrong! The test is objective - the person's subjective feelings and the quality of the setting are irrelevant if all three elements of the acid test are satisfied.
Lawful deprivation of liberty
While Article 5 protects liberty, it does not provide an absolute right. Deprivation of liberty may be lawful if it is carried out in accordance with proper legal procedures. Any deprivation of liberty must be authorised through one of the following legal frameworks:
Government standards and safeguards
Deprivations of liberty must comply with statutory safeguards designed to protect vulnerable individuals. These include procedural requirements for assessment, authorisation, and regular review of the deprivation.
The Deprivation of Liberty Safeguards (DoLS) were introduced in 2009 as an amendment to the Mental Capacity Act 2005. These provide a framework for authorising deprivations of liberty in care homes and hospitals. The government has proposed replacing DoLS with the Liberty Protection Safeguards (LPS), which would extend to a wider range of settings.
The Court of Protection
The Court of Protection can authorise a deprivation of liberty where it is satisfied that:
- The deprivation is in the person's best interests
- It is necessary and proportionate to prevent harm to the person
- Less restrictive alternatives have been considered
- Proper procedures have been followed
The Mental Health Act 1983
Where a person suffers from a mental disorder requiring detention for assessment or treatment, the Mental Health Act 1983 provides a separate legal framework. This Act contains specific provisions for detaining individuals in hospitals and includes safeguards such as tribunal review rights and independent advocacy.
Choosing between frameworks:
When both the Mental Capacity Act and Mental Health Act could apply, practitioners must consider which is more appropriate. The Mental Health Act is typically used when the primary purpose is treatment of mental disorder in a hospital setting, whereas the Court of Protection route under the Mental Capacity Act is used for care arrangements in the community or residential settings.
Key legal principles
Four Fundamental Principles:
Proportionality: Any deprivation of liberty must be proportionate to the risk of harm being prevented. Excessive restrictions cannot be justified even if the person lacks capacity.
Best interests: All decisions must be made in the person's best interests, considering their wishes, feelings, beliefs and values where these can be ascertained.
Least restrictive option: Decision-makers must always consider whether a less restrictive alternative could achieve the same protective purpose.
Regular review: Deprivations of liberty must be regularly reviewed to ensure they remain necessary and appropriate as circumstances change.
Exam guidance
Examination Strategy for Paper 2:
When answering questions on deprivation of liberty:
- Always cite the full case name: P v Cheshire West and Chester Council and another (2014)
- Apply all three elements of the acid test systematically
- Explain why each element is or is not satisfied on the facts
- Remember that all three must be present - partial satisfaction is insufficient
- Consider the objective nature of the test - intentions and contentment are irrelevant
- Identify which legal framework would authorise any deprivation (Court of Protection, Mental Health Act, etc.)
- Discuss the balance between protection and liberty in evaluation questions
Worked Example: Applying the Acid Test
Scenario: Mary, who has dementia, lives in a care home. She has carers with her 24 hours a day who decide what she eats, when she sleeps, and all her daily activities. The door to the care home is locked, and Mary would be prevented from leaving if she tried. Mary appears happy and has never asked to leave.
Application:
Element 1 - Lack of capacity: Satisfied - Mary has dementia and cannot understand or weigh information about her care arrangements.
Element 2 - Continuous supervision and control: Satisfied - Mary has 24-hour care with carers controlling all aspects of her daily life.
Element 3 - Not free to leave: Satisfied - The door is locked and Mary would be prevented from leaving, regardless of whether she has tried.
Conclusion: All three elements are satisfied - Mary is being deprived of her liberty. This must be lawfully authorised through the Court of Protection or DoLS, despite the fact that she appears happy and the care home provides good quality care.
Key Points to Remember:
- Article 5 ECHR protects the right to liberty and security, preventing arbitrary detention by the state
- The acid test from P v Cheshire West (2014) determines when deprivation of liberty occurs
- All three elements must be satisfied: lack of capacity to consent, continuous supervision and control, and not free to leave
- The test is objective - it does not matter if the person is happy or the setting is pleasant
- Any deprivation must be lawfully authorised through the Court of Protection, Mental Health Act 1983, or government safeguarding standards
- The Court of Protection (established under the Mental Capacity Act 2005) oversees personal and financial matters for those lacking mental capacity