Deprivation of liberty: Human rights (DoLS)

Identifying deprivation of liberty

The law does not state what a Deprivation of liberty actually looks like. Because of this, the definition of Deprivation of liberty has developed over time using both domestic and European case law. Storck v Germany (61603/00) [2005] 1 MHLR 211 offers us three ‘elements’ to look for in any given situation: firstly, what is termed the “objective” element, that the person is actually confined to a particular place for a not-negligible period of time; secondly, the “subjective” element, that the person does not or cannot consent to that confinement, perhaps because of a lack of capacity and thirdly, the confinement needs to be “imputable to the State”, the State knows or should know that the Deprivation of liberty is occurring.

In 2014, the Supreme Court further developed the “objective” Storck element in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another: P & Q (by their litigation friend the Official Solicitor) v Surrey County Council [2014] UKSC 19 (also known as Cheshire West) by outlining that if a person is “under continuous supervision and control” and “not free to leave” (the “acid test”), then they are indeed confined.