The Mental Capacity Act 2005 is the legal framework which allows decisions to be made on behalf of people who lack the mental capacity to make the decision themselves, including decisions to deprive a person ‘P’ of his or her liberty.
Deprivations of liberty in social care will be authorised in one of two ways. The deprivation of liberty safeguards (DoLS) are an amendment to the Mental Capacity Act and, under this regime, deprivations of liberty occurring in a hospital or care home setting can be authorised by the relevant local authority. Outside of a hospital or care home setting (for example in a domestic setting or supported living facility), any deprivation of liberty must be authorised by the Court of Protection.
The ‘acid test’ for identifying a deprivation of liberty was established by the court in P v Cheshire West and Chester Council [2014] UKSC 19, which stated that P is deprived of his liberty if he is 1) subject to continuous supervision and control, and 2) is not free to leave.
In addition to prescribing the circumstances in which P may be deprived of his liberty, the Mental Capacity Act 2005 also allows restrictions and restraint (physical and / or chemical) to be used in relation to P’s support, but only if the measures are necessary and proportionate.
Example one
David is 85 years old and is living with dementia. He was previously living in his own home and has been discharged to a care home for respite after suffering a fall whilst he was out in the community alone.
Since living at the care home, David regularly tells people that he wants to return home and asks the care home staff for the code to the main door.
The manager has concerns about David accessing the community alone again and makes a referral to the local authority for a standard authorisation to deprive David of his liberty at the care home. The local authority authorises the deprivation under the DoLS regime, on the basis that it is a necessary and proportionate measure to keep David safe.
David does not know the key code to the main door and is unable to leave the care home freely, and the windows in David’s bedroom at the care home are fitted with safety locks meaning that he is unable to climb out.
The standard authorisation is also subject to a condition that states David must be accompanied by a member of staff or his family if he leaves the care home. Lastly, because of David’s history of falls and poor mobility, staff monitor his whereabouts in the care home and check on him every two hours. If he was to abscond, staff and / or the police would return him to the care home for his own safety.
He is deprived of his liberty by virtue of his residence and care arrangements. If he continues to object and ask to return home, advice from a Court of Protection solicitor should be sought on his behalf in respect of an application to the Court of Protection to review his placement at the care home.
Example two
Jemma is 29 years old and has a learning disability. She lives in a supported living facility and her care package is funded by the local authority. The deprivation of her liberty at the supported living facility is authorised by the Court of Protection.
In addition to decisions about her residence and care, Jemma has been assessed to lack mental capacity to make decisions about internet and social media use.
Her access to websites containing inappropriate content is restricted, and she is supervised by support workers when accessing the internet or social media.
The court is satisfied that this is currently the least restrictive option for Jemma, as she has a recent history of posting and circulating harmful content online and via her social media accounts, putting herself at risk. The restrictions are therefore necessary to prevent harm and risk to Jemma.
Court of Protection solicitors
Our Court of Protection team have extensive knowledge in this area. If there is a dispute as to the deprivation of P’s liberty or the restrictions imposed, then it is important to seek legal advice at the earliest opportunity. Legal aid funding may be available to cover the costs of your representation, subject to eligibility.
If you have concerns about a deprivation of liberty in respect of a loved one, please contact our specialist mental capacity and Court of Protection solicitors on 01616 966 229.
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