Our experience in matters relating to depriation of liberty
Our specialist solicitors have extensive experience dealing with all aspects of deprivation of liberty authorisations and challenges, including:
- Advising family members in relation to deprivation of liberty authorisations, including capacity assessments, and best interests assessments
- Advising family members of the role and duties of a relevant persons representative (RPR)
- Making applications to the Court of Protection to authorise a care package that results in a deprivation of liberty
- Acting on behalf of vulnerable adults or their family members in Court of Protection proceedings relating to deprivation of liberty authorisations or challenges
- Successfully challenging a deprivation of liberty, where a person is detained in hospital or a residential care home – often resulting in a reduction in restrictions to enable greater access to the community, or a move to a more suitable care home, or in some cases, securing a court order that a person can go home with the support of carers
- Successfully challenging evidence of social workers, best interest’s assessors and psychiatrists that a disabled person lacks capacity to consent to staying at a care home.
What is deprivation of liberty?
The law states that a person may be being deprived of their liberty if they are ‘under continuous supervision and control’, are ‘not free to leave’ and lack mental capacity to consent to the arrangements. Deprivation of liberty examples include, if a person may live at home with a social care package in place or they may be living in a residential nursing home where the doors are locked and they are only able to go out when supervised by family members, friends or carers to keep them safe, due to their vulnerabilities.
In these circumstances, it is important that the deprivation of liberty is authorised in some way, if authorisation is not obtained then the person may be being unlawfully deprived of their liberty and their human rights may have been breached.
The method of authorising the deprivation of a person’s liberty will depend on where and how that person is being deprived of their liberty. It is therefore important that specialist legal advice is sought if you think that you or someone you know is being deprived of their liberty without authorisation or if you or they disagree with the authorisation.
It may be necessary for an application to be made to the Court of Protection, either to authorise the deprivation of liberty in the first place or to challenge an authorisation that is already in place.
How long can deprivation of liberty be authorised for?
Deprivation of liberty authorisation, if the individual is in a care home or hospital, is always based on the specific circumstances of the individual and the length of the authorisation can vary. The maximum amount of time that it can be authorised for at a time is 12 months. A renewal can be requested by the care home or hospital to begin as soon as the previous authorisation comes to an end.
If the need is urgent, an urgent authorisation for deprivation of liberty can be requested, which, if granted, will last for a maximum of seven days. This can then be extended, if authorised by the supervisory body.
Challenging deprivation of liberty authorisation
Our specialist solicitors are able to act on behalf of an individual who is being deprived of their liberty or on behalf of friends or family members. If authorisation has been granted to deprive someone of their liberty and they or you disagree with it, it is possible to appeal the authorisation by making an application to the Court of Protection. You may have been informed that you have been named as a relevant persons representative (RPR) – if this is the case it is your responsibility to challenge the authorisation and non-means tested legal aid is available in these cases.
You may be worried that the deprivation of liberty is not what is best for the person, or yourself, we can provide you with advice about this and assist you with challenging the authorisation.
The Court of Protection can overturn or vary an existing urgent or standard authorisation, or can consider whether it is appropriate to authorise a deprivation of liberty in the first place. Our specialist team can provide advice and representation throughout this process.
Any authorisation must be subject to regular review and we are also able to offer advice, guidance and representation throughout the review process.
What are the Deprivation of Liberty Safeguards and what do they do?
The deprivation of liberty safeguards are contained in the Mental Capacity Act 2005. The purpose is to safeguard people being deprived of their liberty as a result of their care package. For example, those In care home settings with locked doors, subject to continuous supervision from care staff in order to keep them safe. This kind of care could result in a deprivation of a person’s liberty and this must be authorised using the deprivation of liberty safeguards process to ensure that there is no breach of their rights (Article 5 right to liberty).
If people are deprived of their liberty due to the extent of their care package, but are residing at home or in sheltered or supported living arrangements a different process must be followed; an application is required to the Court of Protection to authorise the restrictions.
Deprivation of liberty is an ever changing and complex area of law and it is important that specialist legal advice is sought. We are a national firm offering services across the UK and are able to offer competitive fee structures or consider legal aid funding (subject to eligibility). For further information, please contact us on 01616 966 229 or complete our online enquiry form and a member of our specialist team will contact you directly.