If a member of your family loses mental capacity and becomes unable to consent to care or treatment, it may be necessary, in their best interests, for other people to decide where that care should be provided.
Sometimes the level of care that is required to meet someone’s needs can deprive someone of their liberty, to keep them safe.
In this guide, Sophie Maloney, Solicitor at the national law firm Stephensons, explains what deprivation of liberty means, what should happen and the steps to take should your family member object to their care arrangements or should you believe that their placement is not in their best interests.
What is the right to liberty?
Everyone has a right to liberty. No one can be ‘deprived’ of their liberty except in certain situations, when specific procedures to authorise the deprivation of liberty must be used.
The term ‘deprivation of liberty’ is not a negative one and does not always mean that someone is doing something wrong.
Restrictions on someone’s liberty are sometimes necessary to keep them safe, for example, it may be necessary for a person to reside in a care home, hospital, or supported living placement and receive a care package to meet their care needs and keep them safe. The care arrangements may be restrictive and amount to a deprivation of the person’s liberty.
A care package being provided by carers in someone’s own home may also amount to a deprivation of liberty.
How do you know if care arrangements amount to a deprivation of liberty?
If the following conditions are met, it is likely that a care package amounts to a deprivation of liberty:
- Lack of Mental Capacity – an individual must lack mental capacity to consent to their care arrangements due to a mental impairment / disorder. There is a specific test for whether someone has mental capacity, set out in the Mental Capacity Act 2005;
- State involvement – the state must be aware of your care arrangements. This condition is usually met where a Local Authority/ NHS Trust has assessed the individual’s needs and made the decision for the person to be placed in a care home / supported living placement / to remain in hospital;
- Not free to leave – examples of this include a person residing in a locked care home or placement and only being able to leave with supervision, not being free to go out into the community on their own;
- Constant supervision and control- an individual may be subject to constant supervision and control by nature of the level of support that they require. For example, if someone has a disability and are constantly supervised to ensure that they have the care that they need.
The test is not straightforward and is very case specific, depending on the level of the person’s needs and level of the care and support that they require.
What should happen?
It is crucial that any deprivation of liberty is properly authorised. This is to protect the vulnerable person. It is necessary for someone independent to look at and regularly review the care package, to make sure that the individual’s rights are being protected and to confirm that there are no less restrictive ways of providing the care.
How can a deprivation of liberty be authorised?
There are two ways to do this:
- The deprivation of liberty safeguards (known as “DOLS”) – this is a process that enables a Local Authority or NHS Trust to authorise a deprivation of liberty after doing a series of assessments. The assessments are done by a Doctor and Best Interests Assessor. DOLS can only be used to authorise a deprivation of liberty in a care home or hospital setting. The authorisations are called Urgent Authorisations and Standard Authorisations, and authorise the deprivation of liberty for a period of time before it must be reviewed;
- The Court of Protection – for a deprivation of liberty at home, in a supported living or sheltered living placement, or any other setting, an application is required to the Court of Protection. This is a specialised Court that makes decisions on behalf of vulnerable adults who lack the mental capacity to make the decisions themselves, due to a mental impairment.
An example of how a deprivation of liberty may arise and be authorised?
Albert, an elderly man with dementia lived at home before being admitted to hospital. After spending some time in hospital, his dementia deteriorated and it was decided that his care needs were now too high for him to return to live at home, even with carers assisting him. He was discharged to a residential care home, where the doors were locked and he was under staff supervision most of the day and whenever he went into the community. As a result, the Local Authority authorised the deprivation of his liberty using the deprivation of liberty safeguards.
His family were consulted, and his daughter Rosie was appointed as his Relevant Persons Representative.
What is a Relevant Persons Representative?
When the deprivation of liberty safeguards are used to authorise a deprivation of liberty in a care home or hospital, a Relevant Persons Representative (known as an (“RPR”) must be appointed. This can be a family member or friend, or someone independent such as an advocate.
If there are no family members able or willing to take on the role of RPR, an Independent Mental Capacity Advocate (“IMCA”) is often appointed.
The RPR is responsible for challenging the deprivation of liberty on behalf of the individual if the arrangements do not appear to be in the person’s best interests, it seems that the care could be delivered in a less restrictive way or if the person is objecting to being at the placement.
What if the person does not want to move to the care home or is objecting to the deprivation of their liberty, expressing a wish to go home or live elsewhere?
If the person is objecting to the deprivation of their liberty, their RPR has a duty to challenge the deprivation of liberty. This requires requesting that the Local Authority / NHS Trust review the placement and care package and failing this, an application to the Court of Protection for a Judge to review whether the arrangements are in the persons best interests.
For example, in the above example, Rosie thinks that Albert’s care can be provided at home with carers coming in several times a day to support Albert with his personal care and to take him out into the community, and thinks that Albert would be much happier at home. She instructs a Court of Protection Solicitor to make an application to the Court of Protection to review the arrangements. A Judge reviews Albert’s needs and his placement, and decides that it is in his best interests to return home with a care package in place to meet his needs, to be funded by the Local Authority.
What if I have a Lasting Power of Attorney for health and welfare?
This does not matter, the attorney cannot consent to or authorise any deprivation of liberty, the DOLS process or an application to the Court of Protection is still required.
When should I instruct a solicitor?
If you or a relative or friend are being deprived of their liberty and this has not been properly authorised, advice from a Solicitor should be sought in respect of the correct procedure to follow.
If your relative or friend is objecting to the care home that they are residing in, and expressing a wish to go home or live elsewhere, or is unhappy at their placement.
If the Local Authority have issued an application in the Court of Protection to authorise the deprivation of a relative or friend’s liberty and you would like some advice about this.
About the author
Sophie is a solicitor in the Court of Protection and community care department at Stephensons law firm. She specialises in community care and Court of Protection welfare matters and is a Law Society Capacity (Welfare) Accredited Legal Representative.
This content is reproduced courtesy of Final Choices, a website providing information about end of life, care and funeral planning.Last modified: May 24, 2021