Lancashire County Council To Prioritise Applications To The Court of Protection
The Law Of… Deprivation of Peoples Liberty
Lancashire County Council recently identified issues in their ability to make legal decisions regarding people who may be deprived of their liberty in community settings.
Emily Gent, Education and Community Care Associate, outlines the decision and its consequences.
What Is Deprivation of Liberty?
Deprivation of liberty is when an individual who is in care or a hospital is unable to consent to the treatment they need, and as such their liberty, or ability to leave, is deprived from them in order to protect the well-being of the individual.
People who are legally deprived of their liberty in care homes and hospitals are entitled to legal safeguards which secure professional independent assessment.
This assessment considers:
- Whether they lack the capacity to make decisions about where they are to live
- If they do lack capacity, whether it is actually in their best interests to be detained where they are.
If the local authority decides this criteria is met it issues a ‘standard authorisation’ that can be challenged by the incapacitated person or by someone on their behalf in the Court of Protection (COP).
What Cheshire West Means For Care
A Supreme Court Ruling in the 2014 Cheshire West Case, could give rise to deprivation of liberty safeguard cases. This could in turn place more strain on social care services, as they will have an increased workload under the new rules.
In the Cheshire West case the Supreme Court dramatically stretched the definition of who is considered to be deprived of liberty. Previously, only residents of care homes or hospitals could be deprived of their liberty, but the Court extended this to settings such as domestic environments.
The Court decided it would be unfair if people in other settings were not able to receive the same safeguards that people in a hospital or a care home setting would receive.
Local authorities are the bodies responsible for delivering legal safeguards. Every time a local authority acts in regards to an individual's deprivation of liberty outside of a care home, procedures must first be followed.
Before any action is undertaken approval from the Court of Protection must be obtained. The process has since been streamlined, but there are still massive implications for the public bodies involved.
What Are The Consequences To These Changes?
The ruling in Cheshire West placed huge additional pressure on already stretched social care and legal departments within local authorities. The original criteria has been expanded, for example, it now also applies to 16-18 year olds in residential schools.
Some local authorities tried to challenge the ruling, which Liverpool City Council stating the by the government there was: “on-going failure to provide full, or even adequate, funding for local authorities in England to implement the Deprivation of Liberty regime”
Authorities have been very vocal in the difficulties in following these new policies, claiming that people may not be receiving the safeguards or independent checks they legally entitled to. The end result may be people living in placements that are contrary to their best interests.
How Will Liberty Be Safeguarded In The Future?
The decision Lancashire County Council have made confirms that they are struggling to cope, leading to the adoption of a pragmatic approach ensuring the most pressing cases are identified and progressed through to the Court as a priority.
This means that those deemed to be of lower priority will be delayed and that during this period they will potentially not receive the safeguards they are legally entitled to.
"Whilst it is positive that Lancashire are seeking to find a solution by identifying the most urgent and pressing cases, this decision highlights the problems encountered nationwide due to funding cuts imposed by central government."
"Whilst new legislation has been proposed that could assist, large numbers of the most vulnerable people in society are currently denied the protection they are legally entitled to."
"Local authorities are clearly struggling and help from central government is urgently needed."
If you have a family member that lacks the capacity to make their own decisions and is in a placement they are objecting to, or you feel the placement or support is not suitable for them, then please contact a member of our specialist Court of Protection and Community Care team. If you just need advice, feel free to use our digital consultation form or Freephone number.