Writing in NLJ this week, Cleo Perry KC and Mai-Ling Savage of 4PB examine the return to a multifactorial assessment and its consequences for practitioners.
The authors predict the number of people legally recognised as deprived of liberty will be ‘greatly reduced’, alongside cases reaching court.
Assessments must now consider factors including restrictions’ purpose, duration and effects, social contact and the setting’s relative normality. A person lacking capacity to decide on care arrangements may nevertheless give valid consent to confinement.
The authors warn that greater reliance on professional assessments could weaken protections and produce inconsistent decisions. Existing deprivation of liberty orders require review.
They also examine Re Mustafa, where the revised approach was applied to a 15-year-old, raising significant questions about children’s consent, restraint and access to judicial scrutiny.
