A deprivation of liberty is when an adult who lacks the mental capacity to consent to their care arrangements is under continuous supervision and control and is not free to leave their place of residence.
Article 5 of the Human Rights Act forbids deprivations of liberty unless they are "in accordance with a procedure prescribed in law" - in this case, that law is the Mental Capacity Act 2005. The Act allows deprivation of liberty for adults who lack the mental capacity to make decisions for themselves, if it's in the person's best interests and is in accordance with the law.
There are three elements that need to be present before a care arrangement can be said to amount a deprivation of liberty:
- Objective: A person’s confinement to a certain place for a not negligible length of time, and that person is subject to constant supervision and control and is not free to leave.
- Subjective: lack the mental capacity to consent to the care arrangements
- State immutability: the local authority or Integrated Care Board are aware of the care arrangements (these agencies may be funding the care).
If you think someone you know is being subject to a deprivation of liberty when they shouldn't be, we may be able to help.
Until 2014, people living in supported accommodation or their own homes didn’t have the same protective measures as those in care homes and hospital. In these cases, deprivation of liberty is authorised via an assessment process under the Deprivation of Liberty Safeguards (DOLS).
People in supported living or living in their own homes can have just as much restriction placed on their personal freedom as those in care homes. For example, a person may need two carers inside their flat and three carers when out and about in the community. The case that brought this change around was the Cheshire West case. This Supreme Court judgment extended the remit of people who could be found to be deprived of their liberty and who didn’t come within the DOLS regime.
You might still need to apply to the Court of Protection to identify a deprivation of liberty even if your loved one is happy with their arrangements and engages willingly with their carers. Care arrangements amount to a deprivation of liberty when the three elements mentioned in the previous section apply.
Care homes and hospitals are only allowed to deprive adults of their liberty if they follow procedures set out by the Deprivation of Liberty Safeguards (DoLS).
These safeguards are designed to make sure that deprivations of liberty are;
- the least restrictive way of ensuring the individual's safety
- in the individual's best interests
- formally assessed and reviewed by independent experts
The safeguards also set out certain rights for people who are being deprived of liberty. They provide people with a 'relevant person's representative' to represent them and monitor their care while they are under the deprivation of liberty. They also give people and their representatives, friends and family the right to challenge deprivation of liberty decisions that they disagree with.
If you or someone you know is facing a deprivation of liberty and you believe that the safeguards have not been followed correctly, we may be able to help you make a legal challenge. Call our team today on 0800 028 1943 to find out more.
We can help anyone who is involved on either side of a dispute over deprivation of liberty, including:
- Individuals who are, or may be, deprived of their liberty
- Their 'relevant person's representative' (RPR)
- Their families
- Independent Mental Capacity Advocates (IMCA)
- Organisations providing care.
We are also regularly instructed by the Official Solicitor, who acts on behalf of children and people with reduced mental capacity.
If you are involved with a deprivation of liberty dispute, get in touch with our experts today by calling 0800 028 1943.
To review the application and advise on any necessary action, including preparing supporting statements for the appointment as a Rule 1.2 representative, our service is a fixed fee of £725 + VAT.
Legal Aid is available for deprivation of liberty cases and isn’t means tested for anyone who’s subject to a Deprivation of Liberty Safeguards authorisation. This means that anyone in this situation can benefit from legal aid regardless of their financial position.
In other cases, you can apply for means-tested legal aid. If your income is from state benefits, or if you're on a low income and don't have any significant savings, then you're likely to meet the means test for legal aid. The income or savings of other family members isn't usually considered. Other people may be able to benefit from Legal Expenses Insurance or fund their case privately.
If you’ve any questions about the costs involved with a deprivation of liberty case and the funding available, please contact us to find out more.
When a package of care is deemed to amount to a deprivation of liberty, an application called a COPDOL11 form will need to be completed. Families and carers, both formal and informal, will be consulted and asked for their views on the care arrangements. They’ll also be asked whether they consider the care arrangements to be in the person’s best interests.
We review and advise on the COPDOL11 application form, including any responses you need to give to the relevant agency and/or court.
You may also be asked to act as the person’s Rule 1.2 representative. This is a role specific to matters in the Court of Protection. If you’re asked to take this role, we can advise on the responsibilities and help you to prepare a supporting statement. The Court of Protection will need this before it makes its decision on who to appoint as the Rule 1.2 representative.
Our national team is ranked Number 1 for Human Rights law in the leading independent guides to the legal profession, the Legal 500 and Chambers & Partners. Our lawyers are members of the Court of Protection Practitioners Association (CoPPA), so you know you're dealing with genuine specialists.
In addition to our legal expertise, we're skilful mediators and have helped many clients to negotiate solutions in hotly disputed cases out of court. With offices around the country, we can help anyone who finds themselves involved in a dispute over deprivation of liberty.
Meet our team of Deprivation of Liberty Safeguards Lawyers
