Deprivation of liberty explained

Article 5 of the European Convention on Human Rights says that everyone has the right to liberty.

What does right to liberty mean?

No one can be deprived of their liberty unless in accordance with the law. A person’s liberty can only be taken away from them in certain specific circumstances. If someone is deprived of their liberty without lawful authorisation, this will amount to a breach of their Article 5 right to liberty.

Someone may have physical or mental disabilities and may be in receipt of a package of care from the local authority or NHS. It may be in the persons best interests for them to be deprived of their liberty in order to keep them safe. In these circumstances, it is important that the relevant public body obtains authorisation to deprive the person of their liberty. It is unlawful for a public body such as a local authority or the NHS to deprive a person of their liberty, without having obtained lawful authorisation.

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Is being deprived of liberty a bad thing?

A person will only be lawfully deprived of their liberty if this is in their best interests. The person may be vulnerable due to their disabilities, and deprivation of their liberty may be necessary to prevent harm or risk to the person. Whether the care arrangements amount to a deprivation of liberty should be assessed and the arrangements must be the least restrictive way of meeting the person’s needs.

Does it matter where the person is receiving the care?

A deprivation of liberty can exist in a hospital, care home, supported accommodation placement and even at home.

So when will care arrangements amount to a deprivation of liberty?

A deprivation of liberty may exist where:

  1. The person lacks mental capacity to consent to their care arrangements
  2. The care is imputable to the state - what does this mean? This means that the care is arranged, funded or provided by a public body such as a local authority or the NHS
  3. The person is under continuous supervision and control - for example, the person needs to be continually supervised as there would be a risk to their safety if left alone
  4. The person is not free to leave - a person may be subject to physical restrictions such as locked doors, or would be prevented from leaving/brought back if they decided to leave

What authorisation is required?

If the person is in a hospital or care home, the deprivation of liberty safeguards apply.

In any other residential setting, including at home, the relevant public body must make an application to the Court of Protection to obtain authorisation from the court.

What are the deprivation of liberty safeguards?

If in a hospital or care home, a person’s liberty can only be taken away if the deprivation of liberty safeguards are used. These safeguards are contained in the Mental Capacity Act 2005 and this involves the undertaking of several assessments and the grant of either an urgent or standard authorisation.

What if there are no issues with the care?

This is irrelevant, if the extent of the care arrangements amount to a deprivation of a person’s liberty, the deprivation of liberty must be authorised - either by use of the deprivation of liberty safeguards or application to the Court of Protection, depending on where the care is being received.

Is a deprivation of liberty the same as being detained?

No, it is not the same as being detained under the Mental Health Act for mental health assessment and/or treatment. The Mental Heath Act is used to detain people for this purpose, the Mental Capacity Act applies where a person is being deprived of their liberty in order to keep them safe.

If a person is being detained under the Mental Health Act, authorisation for deprivation of their liberty cannot be obtained at the same time. However, if someone is conditionally discharged from the detention, the arrangements can amount to a deprivation of liberty under the Mental Capacity Act.

How long will the authorisation be in place?

If an urgent authorisation is granted when a person is in a care home or hospital, due to urgent circumstances, authorisation can only be granted for a maximum of 7 days. After this, an application must be made for a standard authorisation. The length of a standard authorisation depends on the person’s individual circumstances and how often these circumstances and the care might change. The assessor will make a recommendation based on the person’s best interests.

If standard authorisation is granted or if, in another setting, authorisation is granted by the Court of Protection, the authorisation can only be granted for a maximum of 12 months.

What will happen when the authorisation has run out?

The hospital, care home or relevant public body can make an application for a new authorisation to begin as soon as the existing authorisation has expired.

If the court authorises the deprivation of liberty, this must be reviewed again by the court after a maximum time of 12 months.

What if I do not agree with an authorisation? Can I challenge an authorisation?

If the deprivation of liberty safeguards are used, when an urgent or standard authorisation is granted, someone will be appointed as a Relevant Persons Representative (RPR). This is someone who can support the person being deprived of their liberty, by requesting a review or making an application to the Court of Protection to appeal the authorisation in place, if this becomes necessary. This is often (but does not have to be) a family member. It is the responsibility of the RPR to request a review of and appeal the authorisation on behalf of the person. It is important that the RPR takes action and seeks legal advice without delay.

If authorisation has been granted by the court, as opposed to via the deprivation of liberty safeguards, and the person is objecting to the care arrangements or to where they are residing, for example, then application back to the Court of Protection for review of the authorisation may be required.

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 legal aid funding subject to eligibility. For further information, please contact us on 0175 321 5096 or complete our online enquiry form.

 

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