Deprivation of Liberty

What does it mean to be deprived of your liberty and what can you do?

In October 2021 David Walker made the headlines when he claimed that he had been forced to stay in a care home since October 2020. It was reported that David was deprived of his liberty because he was subject to DoLS – but what does this mean? And how do we know when someone is being deprived of their liberty?

What does it mean to be subject to DoLS?

In accordance with Human Rights laws everyone has the right to liberty and security of person unless they are deprived of this by law. The Deprivation of Liberty Safeguards (DoLS) are one of the ways an individual can be legally deprived of their liberty. They are part of the Mental Capacity Act 2005 and they come into play when an individual is found to lack capacity to consent to their care or treatment in a care home or hospital and this treatment is considered to be in their best interests.

What amounts to being deprived of your liberty?

The courts have said that if someone is under continuous supervision and control and is not free to leave where they are living then they are deprived of their liberty. A person’s individual circumstances will need to be considered to see if they meet that test.

If a person is considered to be deprived of their liberty then in order for those arrangements to be lawful they need to be authorised. In certain circumstances this is done by the Courts. In this article we are considering the authorisations that can be made under the DoLS, which local authorities can grant without needing to obtain Court approval.

There are two types of authorisations under DoLS, an urgent authorisation and a standard authorisation. An urgent authorisation can come into force the day it is granted and lasts up to seven days. This can be extended only once, for an additional 7 days. An urgent authorisation is meant to bridge the gap whilst the necessary assessments are undertaken to grant a standard authorisation. There are six assessments needed to ensure that the six requirements set out below are met;

The age requirement:

The person who is being deprived of their liberty must be over the age of 18.

The mental health requirement:

The person being deprived of their liberty must be suffering from a mental disorder as defined in the Health Act 1983. This can include people with dementia and learning difficulties.

The eligibility requirement:

The DoLS authorisation cannot conflict with any requirements the person is already subject to under the Mental Health Act 1983. Consideration also has to be given to whether there should be an application for the person to be detained under the Mental Health Act 1983 rather than being deprived of their liberty under a standard authorisation.

No refusals assessment:

The authorisation cannot conflict with an advance decision to refuse treatment made by the person when they had capacity to do so, or with any decision made by an attorney or deputy appointed to represent the person.

The mental capacity requirement:

The person being deprived of their liberty must be found to lack the capacity to “decide whether or not they should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment” .

For someone to be found to lack capacity they must be unable to do one or more of the following:

Understand the information relevant to the decision;
Retain the relevant information;
Use and weigh up the relevant information as part of making the decision; and
Communicate their decision.

Capacity is specific to the decision that has to be made and at the time it is to be made. It is possible for someone’s circumstances to change and for them to be assessed again and found to have capacity. A finding that someone lacks capacity to make one decision doesn’t mean that they are considered to lack capacity to make all decisions.

The person making the decision must also have been supported to try to make this decision for themselves. For example, by being provided with the relevant information in ways they could understand.

It must be in the individual’s best interest:

It must be in the person’s best interests to be in hospital or to stay in a care home in order to prevent harm being caused to them. Detention in a hospital or care home must be proportionate to the likelihood and seriousness of any harm. There must be a consideration of whether there are any less restrictive ways of preventing that harm which would not amount to a deprivation of liberty.

What can you do if you are deprived of your liberty and you object?

If someone is deprived of their liberty under a standard or urgent authorisation, an application can be made to the Court of Protection to bring proceedings under section 21A of the Mental Capacity Act 2005.

Every individual placed under a DoLS authorisation should be appointed someone to advocate on their behalf. This is called a relevant person’s representative if this is a family member or friend, or if it is a professional, a paid relevant person’s representative. The representative can help the person to bring Court proceedings or they can bring them on their behalf. Alternatively a family member, or friend or the local authority can bring the court proceedings.

The Court of Protection makes decisions on behalf of people who have been found to lack capacity to make the decisions in question for themselves. The court has to make its decision based on what it consider to be in the person’s best interests. The Mental Capacity Act 2005 aims to empower those who lack capacity to make the decision themselves. It aims to ensure that they are at the centre of the decision making process. However, this does not mean that the Court of Protection will make the decision that the individual would have made themselves if they did not lack capacity. Rather the judge will look at all the evidence in the proceedings – including the individual’s wishes and feelings and the views of those closer to them, in reaching its decision.

In proceedings brought under s21A of the Mental Capacity Act, to challenge a standard or urgent authorisation, the Court of Protection reviews the deprivation of liberty and decides whether the requirements for the person to be deprived of their liberty are satisfied. In Mr Walker’s case he and his family are reported to have claimed that he did not lack capacity to decide where to live. The Court of Protection will consider whether the person deprived of their liberty does lack capacity. The court also considers whether it is in their best interest to be deprived of their liberty and will review the care arrangements to see if these can be made less restrictive. Is the individual involved in the proceedings?

If the person who is challenging their deprivation of liberty is assessed to lack capacity to conduct the proceedings, then they will need someone to help them with the court proceedings by conducting the litigation on their behalf. This can either be a litigation friend or an Accredited Legal Representative.

A litigation friend has to be someone the court considers suitable to act in this role. It can be a family member or friend, provided that they do not hold their own strong views about what should happen in the case. If there is no one suitable, who is able or willing to act as litigation friend, then someone called the Official Solicitor may be appointed in the role. The litigation friend will take a view about what they want to ask the judge sitting in the Court of Protection to say is in the person’s best interest. It is important to note that the Court of Protection can only choose what is in an individual’s best interest out of the options which are available to them. For example, if the person says that they want to live in a bungalow by the seaside but do not own a bungalow by the seaside and the local authority says it would not fund this, then the Court of Protection could not make a decision that this was in the person’s best interests.

Even if someone is found to lack capacity to conduct the court proceedings they will still be encouraged to be involved in them. For example they can attend court hearings, and their wishes and feelings, both present and past, any beliefs that they might be influenced by, and the views of their family and friends and those close to them would be given careful consideration by the judge when reaching their decision.

Can I get legal aid to fund a challenge to my deprivation of liberty?

If you or someone you know is detained in a hospital or care home under a standard or urgent authorisation, then they should be entitled to legal aid to bring s21A proceedings in the Court of Protection.

The Court of Protection can make a wide range of decisions relating to the individual’s standard authorisation. This not only includes deciding whether the standard authorisation should remain in place or whether it should be discharged, but also whether the person has capacity to make any decisions for themselves, whether their living and care arrangements are in their best interests, and also whether there should be any conditions attached to the standard authorisation to make the care arrangements less restrictive. If you would like any advice about your circumstances or bringing a challenge to DoLS on behalf of yourself or someone you know please contact our Court of Protection team and they will be happy to discuss whether we are able to assist.