5th June 2014

Everyone has a right to liberty and security of the person as enshrined in Article 5 of the European Convention of Human Rights. Article 5 also provides that anyone who is deprived of their liberty by the state through arrest or detention should have a right to challenge the lawfulness of the detention. Unless a deprivation of liberty is authorised in the ways set out below it is unlawful.

What is a Deprivation of Liberty?

The Supreme Court (in a case called ‘P v Cheshire West’) has recently said that where a person is under continuous supervision and control and is not free to leave they will be deprived of their liberty if they lack capacity to consent to these arrangements.

Authorising a Deprivation of Liberty

To avoid there being an unlawful detention, an authorisation process much occur if the criteria above are met. How this is done varies depending on the type of placement in which the incapacitated person resides. These are considered below:

1. Hospital or Care Home: DOLS authorisation

Where a person is placed in a care home or a hospital (but is not detained there under a Mental Health Act order) and meets the criteria for deprivation of liberty, the home or hospital must use the Deprivation of Liberty Safeguards (DoLS) process to authorise the deprivation of liberty. This involves the local authority being given the opportunity to scrutinise the proposed deprivation of liberty (in effect the care package) to ensure that the requirements (set out below) are met. Usually a ‘Standard Authorisation’ will be sought although is the matter is time-critical an ‘Urgent Authorisation’ can be made for up to 14 days whilst application is made for a Standard Authorisation.

The provider will need to show that the ‘qualifying requirements’ for DoLS authorisation are met before the deprivation of liberty can be authorised as lawful.  A person must be over 18, suffer from a mental disorder, lack capacity to make their own decisions about their care, the deprivation of liberty must be in their best interests (needed to keep the person free from harm and be a reasonable response to the likelihood of harm) and the person not be eligible for detention (a section) under the Mental Health Act 1983.  Additionally there must not already be conflicting provisions made under an Advanced Decision or a Lasting Power of Attorney about the treatment. As part of ensuring that the deprivation of liberty is in a person’s best interests and therefore lawful, it will need to be considered whether there is a less restrictive way of providing the care package.

The person subject to DoLS authorisation will have a ‘Relevant Person’s Representative’ (RPR).  This is usually a family member, a friend, a carer or an advocate who is entitled to make representations to the local authority and has the power to ask the local authority to review the DOLS authorisation.

Reviews must be made on the basis that the qualifying conditions are not met (such as by indicating that there is a less restrictive option available). If this process is not successful the matter can be referred to the Court of Protection for consideration.

A standard authorisation cannot be issued for a period of longer than one year. At the end of that period the process must be repeated if necessary.

Standard Authorisations may also be granted with conditions which might cover issues of contact or other major issues related to the deprivation of liberty that would mean that it would cease to be in the person’s best interests if not dealt with. Conditions might also be put in place to work towards avoiding a future deprivation of liberty.

2. Independent Supported Living Placements: Court of Protection authorisation

If a person is residing other than in a hospital or registered residential care, for example in an independent supported living arrangement – with a tenancy and support services – only the Court of Protection can authorise a deprivation of liberty.

Usually the local authority will make the application to the Court of Protection if it is concerned that arrangements amount to a deprivation of the person’s liberty. A person to represent the incapacitated person’s interests – a litigation friend – will be appointed. This is often the Official Solicitor (http://www.justice.gov.uk/about/ospt). They will appoint a solicitor to talk to the incapacitated person and advise on whether the arrangements are in his/her best interests.

If the Court is satisfied that it is in the best interests of the incapacitated person for the deprivation to be authorised then the Court will make an order, making it lawful for the arrangements to go ahead. The Court will review their authority at least annually.

3. Home setting: Court of Protection authorisation (in limited circumstances)

Typically a home setting will not involve a deprivation of liberty. This is because the arrangements are not put in place by the state (local authority/NHS). However deprivation of liberty in a home environment is a difficult legal issue and there may be circumstances in which arrangements do constitute a deprivation of liberty. In such circumstances it is for the local authority to seek authorisation from the Court of Protection if they are concerned about the arrangements.

How Ben Hoare Bell can help:

We are able to advise on deprivation of liberty matters including with the ‘standard authorisation’ review process or a Court of Protection challenge to a DoLS authorisation. We can also assist with Court of Protection cases relating to a person’s health and welfare including where applications have been made to authorise ISL placement arrangements.

We will always consider whether advice and representation can be provided free of charge under the Legal Aid scheme.