Since the introduction of the Mental Capacity Act 2005, the concept of a deprivation of liberty has been the subject of significant consideration by our judges but the definition finally, for now, seems to have been settled by the court:
- where a person is subject to continuous supervision and control; and
- is not free to leave a particular place; and
then a person is said to be being deprived of his or her liberty.
It can sometimes be necessary to deprive someone of their liberty in order to keep them safe. However, a deprivation of liberty must be properly authorised. The deprivation of liberty safeguards (DoLS) were introduced by the Mental Capacity Act 2005 and apply to individuals who lack capacity to consent to the arrangements and are in a hospital or registered care home. A local authority will arrange for a series of assessments to be carried out and decide whether to authorise the deprivation of liberty. If so, a document called a standard authorisation will be issued.
If you feel that you are being deprived of your liberty or someone you care about is or then we at MJC Law can help. A person who is being deprived of his or her liberty pursuant to a standard authorisation has an automatic right to challenge this by way of an application to the Court of Protection. The court will conduct an independent review of the arrangements and make a determination about whether:
- a person meets the qualifying requirements to be subject to a standard authorisation;
- the period for which an authorisation has been granted is too long;
- the purpose of the authorisation is to provide a person with care and treatment;
- any conditions to which the authorisation is subject should be changed in any way, removed or whether any further ones should be added.
A court will also consider whether a person’s needs can be met in any other less restrictive environments.
Legal aid is automatically available to the person being deprived of his or her liberty and to any representative that has been appointed on behalf of that person (known as the RPR). Legal aid may also available for other interested persons (such as family members), but this depends on their means and the merit of them being involved in the case. At MJC Law, we are experts in cases relating to deprivation of liberty. We can prepare the application to the court and provide representation in court proceedings.
If a deprivation of liberty is present in any setting other than a hospital, residential or nursing home then it must be authorised by the Court of Protection. A statutory authority (such as a local authority, clinical commissioning group or NHS hospital trust) will generally make the application to the court. We at MJC Law are very experienced in acting for persons for who are alleged to lack capacity and are able to act for them on the instruction of their litigation friend or as their accredited legal representatives.
We are also accredited legal representatives and are able to act on behalf of the individual being deprived of their liberty when this is appropriate.
We are also very skilled in acting for concerned family members who may object to some or all of the arrangements being proposed for their loved one.
We are more than happy to discuss cases on an informal basis to help you decide whether the involvement of legal professionals is appropriate in your case.