A Deprivation of Liberty may occur when an adult who lacks the mental capacity to make decisions about their care is under continuous supervision and control and is not free to leave their care environment. This may happen in a hospital, care home or in a community based placement and possibly even in a care at home package.
The right to liberty is set out in Article 5 of the European Convention of Human Rights. A deprivation of liberty may be a vital measure to keep the individual safe, but it must be properly authorised in order to be lawful. The authorising body needs to examine whether there is a less restrictive way to provide the individual’s care, which does not unnecessarily restrict their freedom or deprive them of their liberty
Deprivation of Liberty Safeguards (DoLS) are part of the framework introduced by the Mental Capacity Act 2005 (MCA). A person who is being deprived of their liberty as a result of their care needs is entitled to legal safeguards. The safeguards exist to make sure that the restrictions that have been put in place are necessary, appropriate and proportionate.
If the individual is in a care home or hospital, the proposed deprivation of liberty must be carefully considered and either authorised or declined by Social Services or the NHS. If the individual is receiving their care in another setting, the proposed deprivation of liberty must be authorised by the Court of Protection.
The Supreme Court judgement in P v Cheshire West and Chester County Council and P and Q v Surrey County Council set out the “acid test” for determining whether someone is being deprived of their liberty:
The nature of the challenge will depend upon what has gone wrong with the Deprivation of Liberty Safeguard process and why you think that the arrangements are not appropriate in your vulnerable or incapacitated relative’s case.
It may be possible to obtain the right outcome at a local level, for example through a Best Interest Meeting. We would do this by persuading the care provider or Social Services that there is a less restrictive way of providing the care. This can help in a dispute about whether your relative should live at home or in a care home; or in a dispute about contact and visiting.
In other cases, a deprivation of liberty dispute can only be resolved by the Court of Protection. The Court will carefully consider the care, support and restrictions to determine what is in your relative’s best interests. The Court can overturn or vary decisions that have been made at local level.
Our team of expert Deprivation of Liberty Safeguards and Mental Capacity Act lawyers can help make sure that your vulnerable or incapacitated relative is properly protected by the law. We will help you put the strongest arguments to Social Services, the NHS or to the Court of Protection so that your relative’s best interests and human rights are at the centre of every decision about the care, support and treatment that they receive.
If you would like help and further information on how to protect a family member or friend who may be subject to a deprivation of their liberty, then contact our community care law team on 01273 609911.