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Deprivation of liberty is an ever changing and complex area of law and it is important that specialist legal advice is sought. We are a national firm offering services across the UK and are able to offer competitive fee structures or legal aid funding (subject to eligibility). For further information, please call our deprivation of liberty experts on 01616 966 229 or complete our online enquiry form and a member of the team will contact you.
Article 5 of the European Convention on Human Rights says that everyone has the right to liberty.
No one can be deprived of their liberty unless in accordance with the law. A person’s liberty can only be taken away from them in certain specific circumstances. If someone is deprived of their liberty without lawful authorisation, this will amount to a breach of their Article 5 right to liberty.
Someone may have physical or mental disabilities and may be in receipt of a package of care from the local authority or an NHS Trust. It may be in the person’s best interests to be deprived of their liberty in order to keep them safe. In these circumstances, it is important that the relevant public body obtains authorisation to deprive the person of their liberty. It is unlawful for a public body, such as a local authority or the NHS, to deprive a person of their liberty, without having obtained lawful authorisation.
Deprivation of liberty refers to a circumstance in which an individual is subject to limited freedom, without the ability to leave freely. This typically occurs when the person lacks the capacity to consent to these conditions, and it raises important legal and ethical questions regarding their human rights and welfare.
A deprivation of liberty can occur when someone is subject to continuous supervision, unable to freely decide to leave, and lacks the capacity to give consent to these conditions.
The Deprivation of Liberty Safeguards (DoLS) procedure aims to safeguard your rights if the care or treatment provided in a hospital or care home could result in your loss of freedom, and you do not have the mental capacity to agree to such arrangements.
The Deprivation of Liberty Safeguards are applicable exclusively when someone faces potential liberty deprivation in a care home or hospital. In other settings, the Court of Protection has the authority to approve such deprivation. Care homes and hospitals are required to seek permission from the local authority before depriving an individual of their liberty as it is the relevant public body that must undertake the necessary assessments and authorise any DOLS authorisation.
The Deprivation of Liberty Safeguards (DoLS) process is created to safeguard your rights when the care or treatment you're receiving in a hospital or care home might result in you losing your freedom, especially if you don't have the mental capacity to agree to such arrangements.
It may be that the person requires the supervision and restrictions in place by nature of their care and support, to keep them safe. This may still amount to a deprivation of their liberty and require authorisation.
It is important that the necessary authorisation is put in place as this provides access to safeguards to uphold the person’s rights to challenge the arrangements, if they are unhappy with any aspect or it appears that the care and restrictions in place are no longer in their best interests.
A person will only be lawfully deprived of their liberty if this is in their best interests. The person may be vulnerable due to their disabilities, and the deprivation of their liberty may be necessary to prevent harm or risk to the person. Whether care arrangements amount to a deprivation of liberty should be assessed and the arrangements must be the least restrictive way of meeting the person’s needs, this is a complex area and specialist legal advice should be sought.
A deprivation of liberty can exist in a hospital, care home, nursing home, supported accommodation placement or even at home.
A deprivation of liberty may exist where:
The person lacks mental capacity to consent to their care arrangements.
The care is imputable to the state - what does this mean? This means that the care is arranged, funded or provided by a public body such as a local authority or the NHS.
The person is under continuous supervision and control - for example, the person needs to be continually supervised as there would be a risk to their safety if left alone.
The person is not free to leave - a person may be subject to physical restrictions such as locked doors, or would be prevented from leaving/brought back if they decided to leave.
If the person is in a hospital, care or nursing home, the deprivation of liberty safeguards apply.
In any other residential setting, including at home or in a supported living placement, the relevant public body must make an application to the Court of Protection to obtain authorisation from the court.
The DoLS assessments ensure that the care provided to individuals with cognitive impairments (such as dementia or a brain injury) are protected, and to ensure that a breach of their Article 5 right to liberty is necessary and proportionate. This assessment consists of six components: age, mental health, mental capacity, best interests, eligibility, and no refusals. One of the six assessments is that the care arrangements must be in the person’s best interests, and this assessment must include consultation with family members and loved ones.
If in a hospital, care or nursing home, a person’s liberty can only be taken away if the deprivation of liberty safeguards are used. These safeguards are contained in the Mental Capacity Act 2005 and this involves the undertaking of several assessments and the grant of either an urgent or standard authorisation.
This is irrelevant, if the extent of the care arrangements amount to a deprivation of a person’s liberty, the deprivation of liberty must be authorised - either by use of the deprivation of liberty safeguards or by an application to the Court of Protection, depending on where the care is being received.
No, it is not the same as being detained under the Mental Health Act for mental health assessment and/or treatment. The Mental Health Act is used to detain people for this purpose, the Mental Capacity Act applies where a person is being deprived of their liberty in order to keep them safe.
If a person is being detained under the Mental Health Act, authorisation for deprivation of their liberty cannot be obtained at the same time. However, if someone is conditionally discharged from the detention, the arrangements can amount to a deprivation of liberty under the Mental Capacity Act.
If an urgent authorisation is granted when a person is in a care home, nursing home or in hospital, due to urgent circumstances, authorisation can only be granted for a maximum of 7 days. After this, a standard authorisation must be put in place. The length of a standard authorisation depends on the person’s individual circumstances and how often these circumstances and the care might change. The assessor will make a recommendation based on the person’s best interests.
If a standard authorisation is granted or if, in another setting, authorisation is granted by the Court of Protection, the authorisation can only be granted for a maximum of 12 months.
The hospital, care home, nursing home or relevant public body must review the arrangements and can then either make an application to the Court of Protection for a new authorisation to begin as soon as the existing authorisation has expired or grant a new standard authorisation.
If the court authorised the deprivation of liberty, they must review it when they receive the application to renew the authorisation. This must take place at least every 12 months.
If an application needs to be made to the Court of Protection to authorise a deprivation of liberty, because the deprivation of liberty safeguards cannot be used, then the court may be able to consider this application without the need for a hearing. This might be the case for the first application and for any other applications which are made after the authorisation expires.
If the deprivation of liberty safeguards are used, when an urgent or standard authorisation is granted, someone will be appointed as a Relevant Persons Representative (RPR). This is someone who can support the person being deprived of their liberty, by requesting a review or making an application to the Court of Protection to appeal the authorisation in place, if this becomes necessary. This is often (but does not have to be) a family member. It is the responsibility of the RPR to request a review of and appeal the authorisation on behalf of the person if there are concerns that it is not in the person’s best interests. It is important that the RPR takes action and seeks legal advice without delay.
If an application has been made for authorisation by the Court of Protection and there are concerns that the deprivation of liberty is not in a person’s best interests then the court must list a hearing to consider this. If you are not sure whether the Court of Protection have been made aware of concerns about a deprivation of liberty then specialist legal advice should be sought without delay.
If an authorisation has been granted by the Court of Protection, as opposed to via the deprivation of liberty safeguards, and the person is objecting to the care arrangements or to where they are residing, by trying to or asking to leave for example, then an application back to the Court of Protection for review of the authorisation may be required.
Deprivation of Liberty Safeguards (DoLS) may not be applicable in certain situations, such as:
When a DOLS authorisation is granted, a Relevant Persons Representative (“RPR”) will be named on the authorisation. This will either be a family member or loved one, or an independent advocate. The RPR has a legal duty to instruct a Solicitor to challenge the DOLS in the event that the person is consistently objecting to the arrangements.
Deprivation of liberty is an ever changing and complex area of law and it is important that specialist legal advice is sought. We are a national firm offering services across the UK and are able to offer competitive fee structures or legal aid funding (subject to eligibility). For further information, please call our deprivation of liberty experts on 01616 966 229 or complete our online enquiry form and a member of the team will contact you.
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