Following the decision of the Supreme Court in March 2014 in Cheshire West, there are two questions to ask:
- Is the person subject to continuous supervision and control?
- Is the person free to leave?
The focus is not on the person’s ability to express a desire to leave, but on what those with control over their care arrangements would do if they sought to leave. In all cases, the following is not relevant to the application of the test:
- the person’s compliance or lack of objection
- the relative normality of the placement (whatever the comparison made)
- the reason or purpose behind a particular placement.
The following list gives examples of steps taken which involve more than restraint and amount to a deprivation of liberty:
- Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission.
- Staff exercise complete and effective control over the care and movement of a person for a significant period.
- Staff exercise control over assessments, treatment, contacts and residence.
- A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate.
- A request by carers for a person to be discharged to their care is refused.
- The person is unable to maintain social contacts because of restrictions placed on their access to other people.
- The person loses autonomy because they are under continuous supervision and control.
This list is not exclusive.