Court of Protection: Deprivation of Liberty

It can sometimes be necessary for care homes, hospitals, or residential placements to place restrictions on a person who lacks mental capacity in the interests of protecting their safety and wellbeing. This can amount to a deprivation of liberty, in which case the Deprivation of Liberty Safeguards (DoLS) are there to ensure correct procedures are followed to ensure these restrictions are lawful.

Making sure your loved ones are properly cared for

For the close friends and family members of a person who may be being deprived of their liberty, this can be concerning. You're likely to have concerns about whether they are being unlawfully deprived of their liberty, and if the responsible body has taken the correct and lawful steps in relation to their care and residence.



We Care About Helping You


When loved ones are cared for by others, whether in hospital, a care home or a residential placement, it's important that you feel they are cared for fairly and have their dignity respected. This is especially crucial when your loved one lacks mental capacity to make decisions and when they may be unable to communicate any difficulties or concerns that they have.

Providing Real Solutions to Your Problems

We know that securing the right care for a loved one is incredibly important, but we also know that achieving it isn't always easy. The law in this area is very complex, which means you may be unsure of your rights or how to access assistance to enforce those rights.

Making Sure Your Voice is Heard

At Simpson Millar, we believe that everyone should have fair access to specialist, clear and understandable legal advice to resolve any concerns relating to deprivations of liberty. By speaking to our team, your concerns will be listened to; you'll no longer be left in the dark, and we'll work with you to reach a positive solution.

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What are The Deprivation of Liberty Safeguards?


The Deprivation of Liberty Safeguards (DoLS) were introduced into the Mental Capacity Act 2005 by the Mental Health Act 2007. The safeguards were put in place to ensure that people who lack mental capacity are cared for in a way that doesn't unlawfully restrict their freedom and liberty.

Whilst carers must strive to administer care in a way that avoids depriving a person of their liberty, this isn't always an option. If it's decided by the authority in charge of care that they must deprive a person of their liberty in order to continue providing care, they are required to follow strict rules to do so lawfully. These are the DoLS and include;

  • Ensuring the person is given a representative who has the right to challenge the deprivation of liberty authorisation in the Court of Protection, and
  • Ensuring the deprivation of liberty authorisation is managed and reviewed as often as required.

It's important that the correct authorisation procedures are followed in any case where it's considered that a person is being deprived of their liberty. The authorisation process differs depending on where care is provided. If care is provided in a supported living placement or in a person’s own home, only the Court of Protection can grant an authorisation and the DoLS do not apply. However, for those in a care home or hospital, the managing authority (the hospital or care home) is required to either grant itself an urgent authorisation (if the situation is urgent) or to apply to a supervisory body (the local authority/council) which will consider the application and decide whether to grant a standard authorisation.

When Does a Person Lack Capacity?

'Mental capacity' means the ability to make your own decisions and choices. People may lack capacity due to illness or a disability. Section 3 of the Mental Capacity Act holds that a person will be deemed unable to make a decision for himself if he is unable to;

  1. To understand the information relevant to the decision
  2. To retain that information
  3. To use or weigh that information as part of the process of making the decision, or
  4. To communicate his decision (whether by talking, using sign language or any other means)

Someone will be considered to be lacking capacity if they aren't able to do one or more of these things.

Find out more about mental capacity, best interests and how we can help you.

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What is a Deprivation of Liberty?


There is no single definition of what constitutes a deprivation of liberty and it can be hard to work out if legally, an individual is being deprived of their liberty. However, following case law an "acid test" has been established.

The joined cases of P v Cheshire West and Chester Council and another, and P&Q v Surrey County Council, the Supreme Court determined that the questions that need to be asked when establishing whether a person is deprived of their liberty (so as to require authorisation under the DoLS or by the Court of Protection) are broadly and in summary:

The Acid Test

When trying to work out if someone is deprived of their liberty, it is not relevant to consider whether the person complies with the restrictions or objects to them; whether the deprivation is relatively normal for that person or others with similar difficulties or diagnoses, or the purpose of the placement.

Deprivation of Liberty Examples

When someone is deprived of their liberty they may have various restrictions placed on them; this could involve preventing a person from leaving (such as locking external doors or using physical restraint), or it could be a series of restrictions which individually would not amount to a deprivation but together do (such as having to be accompanied when they go out, being limited in the use of alcohol and/ or cigarettes and administration of medication).

What can deprivation of liberty look like

Some questions to be considered are:

  • What measures are being taken? When are they required and why are they necessary?
  • What are the effects of the restraints/restrictions on the individual?
  • What goal do they seek to meet?
  • How are the restraints/restrictions implemented?
  • Are there less restrictive options available?

This is not an exhaustive list of examples so if you have concerns about whether your family member or loved one is being deprived of their liberty you should seek advice.

No two cases are likely to be the same, and it is important to assess each case individually.

If you're unsure whether a relative is being deprived of their liberty, our experts will be able to help. We know that every case is different, which is why it's important for you to benefit from personalised advice on the individual facts.

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Authorising a Deprivation of Liberty


Depriving someone of their liberty is a serious matter and the decision to do so should only be taken where:

  • It is in the individual’s best interests to protect them from harm
  • The deprivation is a proportionate response to the likelihood and seriousness of the harm; and
  • There is no less restrictive alternative available

Who can be Deprived of Their Liberty?

Any individual could potentially be deprived of their liberty. However, the Mental Capacity Act and the Court of Protection, with regards to deprivation of liberty cases, are only concerned with those individuals who lack capacity to make decisions about their care and/or residence and who are aged 16 or over.

There are different procedures for authorising a deprivation of liberty depending on the age of an individual and where the deprivation of liberty has occurred or will occur.

  • For those over 18 years of age who are in a hospital or care home, authorisation should be sought according to the Deprivation of Liberty Safeguards (DOLS)
  • For those aged between 16-18 and/or residing somewhere other than a care home or hospital, authorisation needs to be sought from the Court of Protection
  • For those aged under 16, authorisation may be available under the Mental Health Act 1983 (if they suffer from a mental disorder sufficient to bring them within that Act), otherwise, an application would need to be made to the High Court or to the Principal Family Registry, either as an application under section 25 Children Act 1989, or under the inherent jurisdiction of the High Court

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The Types of DoLS Authorisations


There are two types of authorisation under the DoLs; a Standard Authorisation and an Urgent Authorisation.

Standard Authorisation

A request for a Standard Authorisation should be sought from the “Supervisory Body”, usually the local authority/council, where it appears likely that within the next 28 days an individual will be accommodated in a situation likely to amount to a deprivation of liberty. It is important that authorisation is sought before the deprivation of liberty begins, i.e. before the individual is admitted to the hospital or care home, or if they are already admitted before the new restrictions are implemented.

Urgent Authorisation

Where it is not possible to obtain a Standard Authorisation in advance and it is necessary to deprive someone of their liberty before one can be obtained, an Urgent Authorisation may be self-granted by the relevant care home or hospital (for this purpose the care home or hospital is known as the “Managing Authority”). If an Urgent Authorisation is granted the care home or hospital must also obtain a Standard Authorisation within seven calendar days.

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Assessments, Review and Support


Assessments

Before a Standard Authorisation is granted a number of assessments must be conducted by the Supervisory Body to ensure that all the qualifying requirements have been met these are, an age assessment, a no refusals assessment, a mental capacity assessment, a mental health assessment, an eligibility assessment and a best interests assessment. Steps should also be taken to consult with the individual who is to be deprived of their liberty and any family members and individuals who are involved with the person’s care, to ensure that it is not possible to care for them in a less restrictive way as part of the best interests assessment.

Review

Once an authorisation has been granted it is time limited and an extension must be sought prior to the expiry date if the deprivation is to continue. It is also possible to make the authorisations subject to conditions. Those responsible for providing care to an individual should also keep the authorisation under regular review to ensure that the qualifying requirements continue to be met and that any conditions are adhered to.

Support

Any individual subject to an Urgent or Standard Authorisation under the DOLS is entitled to have a statutory representative called a Relevant Person’s Representative (“RPR”), appointed to advocate on their behalf. An RPR is also responsible for ensuring that the wishes and views of the individual are taken into consideration and, if necessary, to assist them to request a review of the Urgent and/or Standard Authorisation and/ or an application to the Court of Protection.

An RPR can be a family member, where appropriate, or a paid individual acting in this role from an advisory service.

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If You're Concerned a Relative is Being Deprived


If the individual who is being deprived of their liberty, a relative, friend, carer or any other third party (such as a person carrying out an inspection visit or a member of an advocacy organisation) believes that the person is being deprived of their liberty without authorisation, the first step that they should take is to draw this to the attention of the Managing Authority (i.e. the care home or hospital). They should ask the Managing Authority to apply for an authorisation if it wants to continue with the care regime or to change the care regime immediately. They should then give the Managing Authority a reasonable time to respond. Given the urgent nature of a deprivation of liberty and depending on the circumstances, this could vary from 24 hours to a week.

It may be possible for the Managing Authority to resolve the matter informally with the concerned person, e.g. by making some adjustments to the care arrangements so that the person in question is no longer deprived of their liberty. However, if the Managing Authority is unable to resolve the issue they must grant themselves an Urgent Authorisation and/or submit a request for a Standard Authorisation to the Supervisory Body.

If the Managing Authority does not do so, the concerned person can ask the Supervisory Body directly to decide whether there is an unauthorised deprivation of liberty. If this happens, the Supervisory Body must (unless it believes the request to be frivolous or vexatious, or where a very recent assessment has been carried out and repeated requests are received, or the question has already been decided and, since that decision, there has been no change in circumstances) select and appoint a person who is suitable and eligible to carry out an assessment to consider whether the person is deprived of liberty. The Supervisory Body must record the reasons for its decisions.

There are three possible outcomes of the assessment. The assessor may conclude that:

  • The person is not being deprived of their liberty
  • The person is being lawfully deprived of their liberty because authorisation exists (though this is an unlikely outcome since the Supervisory Body should already be aware if any authorisation exists, thus rendering any assessment in response to a third party request unnecessary), or
  • The person is being deprived of their liberty unlawfully

If There is an Unauthorised Deprivation of Liberty

If the outcome of the assessment is that there is an unauthorised deprivation of liberty, then the full assessment process should be completed by the Supervisory Body as if a Standard Authorisation for deprivation of liberty had been applied for (unless the Managing Authority changes the care arrangements so that it is clear that there is no longer any deprivation of liberty).

If the Managing Authority decides that the need to continue the care amounting to a deprivation of liberty is so urgent that the care regime should continue while the assessments are carried out, it must grant an Urgent Authorisation and seek a Standard Authorisation within seven days.

Challenging a Deprivation

If the concerned person does not accept the outcome of their request to the Supervisory Body for assessment (see Concerns and disputes), they can apply to the Court of Protection to challenge that decision.

An application may also be necessary where an authorisation is granted, but the concerned person does not believe that the deprivation is in the person’s best interests or that some of the other qualifying requirements are not met. The majority of applications are made in these circumstances. We can assist you with any application.

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What Should I do if They are?


If an individual is being deprived of their liberty then authorisation should either have been granted through the DoLS procedures or have been obtained from the Court of Protection. If there is no authorisation in place and an individual is being deprived of their liberty, that deprivation is unlawful and steps need to be taken to protect them by either authorising the deprivation, or providing care in a less restrictive manner.

The Court of Protection has oversight to ensure that local authorities and health professionals are acting in accordance with the Act and the DOLS. An application to the court can be made by the concerned individual, family members or an advocate and we can provide specialist advice, assistance and representation for any application.

If you are concerned that a family member or someone you know is being deprived of their liberty, you should first try speaking to those responsible for their care or encourage their immediate family to do so. If you are not satisfied with their response then you should seek legal advice; our specialist solicitors can help you.

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How can we Help You?


We have a great deal of experience supporting families who are worried that a loved one is being unfairly deprived of their liberty; we're familiar with your many of your concerns and the difficulties you are faced with.

Taking action for a loved one who is deprived of their liberty is incredibly stressful and difficult; seeking legal advice can be a welcome lifeline.

The law in this area changes frequently, it is complex and it can be hard to understand your rights, and specialist support is crucial. Our Deprivation of Liberty Solicitors at Simpson Millar are amongst leading experts and are best placed to supporting you and helping you reach the best outcome.

Advice and Assistance

Our expert deprivation of liberty team regularly acts for individuals who lack capacity, their family members, advocates and RPRs, providing them with advice and assistance so they can better understand the complex processes involved when someone is deprived of their liberty.

Correspondence and Representation

We also assist by corresponding with Managing Authorities and Supervisory Bodies to raise concerns about a suspected deprivation of liberty. If that correspondence does not resolve the concerns, we provide advice about any proposed application to the Court of Protection and can make any necessary applications.

What We Can Achieve

We have succeeded in securing less restrictive regimes, moving individuals to other placements and changing conditions attached to authorisations.

We secure real benefits for the individuals, who are subject to a deprivation of liberty, including:

  • Where necessary, obtaining expert clarification of their capacity to make decisions (which is particularly important in cases involving a person with fluctuating capacity)
  • Empowering them to have involvement in their care planning
  • Ensuring that their wishes and views (and those of people who know them well) are taken into consideration when important decisions about their care, residence and contact with others are made
  • Ensuring that care plans are reviewed and adapted to allow the individual being cared for to live as independently as possible
  • Identifying flaws in decision-making practice, including failure to follow the Code of Practice and Social Care Institute for Excellence (SCIE) Guidance

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How to Fund Legal Assistance


Your options for funding legal advice

Funding from the Legal Aid Agency (known as legal help or public funding) is available for the provision of advice regarding a deprivation of liberty and in order to challenge a deprivation of liberty.

The availability of legal aid for initial advice, before proceedings have commenced, is subject to a means test and a merits test. Calculating your entitlement to legal aid where a means test does apply (i.e. if you seek to challenge a decision on capacity or best interests, but are not challenging an authorisation) can be complicated; if you would like to find out whether you are eligible for legal aid, please contact us.

Broadly, you will be entitled to legal aid for the purposes of a means test if you are in receipt of:

  • Income support
  • Income-related employment and support allowance
  • Income-based jobseeker’s allowance
  • Pension credit, or
  • Universal credit and
  • You do not have savings over £8,000

If you receive another benefit or have a low income, you may also qualify for legal aid, provided your disposable income is less than £733 per month, but you may have to pay a contribution towards your legal costs. If you have savings over £8,000 you will not qualify.

We are able to calculate whether your income and capital are below the thresholds.

If you are not eligible for legal aid please do not worry; we also provide specialist advice, assistance and representation at highly competitive rates on a private fee-paying basis. We may be able to agree a fixed fee for certain work but even if we cannot do so in your particular case, we are happy to discuss the best way to meet your needs.

In DoLs cases, i.e. where you seek to challenge an authorisation, you are the person subject to the authorisation, or their RPR, and proceedings have already been issued or need to be issued, you will not have to satisfy the means test, so your financial circumstances as RPR and/or those of the person applying for legal aid who is subject to the authorisation, will not be relevant.

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People we Have Helped


Zena Soormally a solicitor specialising in Court of Protection issues supported P, a 26 year old man with severe learning disabilities and autism.

P’s placement had broken down and he had been urgently moved into a care home on 5th September 2014. An urgent authorisation had been granted followed by a standard authorisation on 23rd December 2014. Surrey County Council had been told by P’s social worker following a best interests assessment that the care home P had been placed in would not be suitable in the medium or long term. The issue in question was, with this knowledge, whether Surrey County Council had unlawfully deprived P of his liberty.

Zena helped P to win his case; it was found that P had been unlawfully deprived of his liberty and P was then able to be moved to a more appropriate and less restrictive placement that could best meet his needs. This was a result that P’s mother had sought for some time, she said:

“There is no doubt that the support of the advocate and solicitor has been huge in highlighting our son’s needs and rights, none of which would have been spelled out to us otherwise. It has also made it very apparent that had our son not had me and his father able and willing to fight his corner, then he would still be sitting unhappy in the ‘emergency’ home. Sadly there must be many individuals left in that sad situation while the ‘care’ system fails them. We can only hope that our legal battle will go some way to preventing other vulnerable individuals being put through similar scenarios.”

“We cannot thank you enough for all you have done – you have been so supportive to us all and it is so much appreciated. You are a lovely person.”

You can see the full judgment in P v Surrey County Council and another (2015).

Zena supported a client, AA, with a challenge against a standard authorisation depriving him of his liberty in hospital.

AA did not agree that it was in his best interests to remain in hospital until a care home placement could be found for him, because he was fit for discharge and had his own flat where he had lived for over 30 years which he wanted to return to. AA had been assisted to make his application to the Court of Protection by his RPR and advocate from POhWER.

It appeared that no adequate steps had been taken to consider the option of a return home. AA had been in and out of hospital over a period of years. The hospital Trust alleged that, in the past, when at home after discharge from hospital, he had refused his medication, suffered deterioration in his health and then suffered readmission. They wanted to avoid this, especially as, according the clinical team, he was on the last medication available to him and, if he did not comply on discharge this time, his life expectancy would dramatically decrease.

Ultimately, after extensive investigations, it was found that it might be possible for AA to return home after all, with an enhanced package of care, and steps were taken to obtain the judge’s decision on that point. Following a number of meetings with AA before the final hearing, concern grew AA may have capacity to make the decisions in question. Two capacity assessments were finally carried out days before the final hearing and they determined that AA did have capacity, so he made his own decision to return home.

He has since returned home with a full and comprehensive package of care.

"Zena is very helpful and sympathetic and provided excellent support to our client. She had a clear understanding and great knowledge of the situation. She is very committed to her clients and it was excellent to work with her." – AA's Relevant Person's Paid Representative (RPPR).

Angela Jackman, a Partner specialising in Court of Protection and Community Care issues, supported AH, a man subject to a standard authorisation.

AH was assessed by a doctor and it was found that he did have capacity to conduct proceedings and make decisions in respect of his residence and care. Because of this evidence, the Local Authority agreed to concede proceedings.

With Angela’s support, he was able to have the standard authorisation terminated and he is now free to come and go as he wishes.

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Why Choose Simpson Millar


Finding the right solicitor to work with can make all the difference to the outcome of your situation. A solicitor with proven expertise acting on your behalf will give you full peace of mind and reassurance that your case is in more than capable hands.

Our Court of Protection team, headed by Julie Cornes and Angela Jackman, are recognised as leaders in the field, receiving commendation in legal guides including Chambers & Partners and the Legal 500.

We have acted in a number of important cases which have developed the law in relation to Relevant Person's Representatives when acting as litigation friend to a person deprived of their liberty in Court of Protection cases.

For example, we conducted the landmark case of AB v LCC & Care Manager of BCH which established that a Relevant Person's Representative can properly act as litigation friend in DOLS proceedings, and the case of P v Surrey and another which is detailed above.

Testimonials

“We had an excellent and sympathetic service and support which showed clear understanding of our situation” - advocate/RPR of our client.

“I don’t know how we managed without all of the help you guys have given...” - advocate/RPR of our client.

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Contact Our Deprivation of Liberty Experts

Our Deprivation of Liberty team at Simpson Millar is passionate about defending the rights of people who have been unlawfully deprived of their liberty.

We appreciate that you need a solicitor with the tenacity and energy to reach a positive outcome as quickly as possible; to ensure that if your family member is unlawfully restricted, it is for as little time as possible. This is why, if you are concerned that a relative or loved one is being deprived of their liberty, it's important to seek legal advice and start the process as soon as possible.

By contacting our team, you can rest assured that your case is in the hands of leading experts, whilst benefitting from the personalised, tailored support that we pride ourselves on at Simpson Millar.

Get in touch...

For further information contact us on freephone: 0808 129 3320 or please complete our online enquiry form.


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Julie Cornes - Education Law and Community Care Solicitor - Simpson Millar LLP - London

Julie Cornes
Partner, Court of Protection (Capacity & Deprivation of Liberty)

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