Is Your Family Member Deprived Of Their Liberty?

Posted:24th July 2017

Deprivation of liberty may sound dramatic but sometimes it can happen under your nose without even noticing.

In order for a person’s care arrangements to amount to a deprivation of liberty under the Mental Capacity Act, the person must lack the mental capacity to consent to those arrangements. In addition, the person will be:

1. subject to continuous supervision and control; and

2. not free to leave.

The arrangements must also be “imputable to the state”, so in some way the responsibility of the state.

A common example would be where a relative loses capacity to make decisions about care and residence due to dementia. In those circumstances it may be considered in their best interests to live in a care home with a locked door. A deprivation of liberty can arise in various settings including private care arrangements in a person’s own home.

For a deprivation of liberty to be lawful, it must be authorised. The system of regulation is provided by the Deprivation of Liberty Safeguards within the Mental Capacity Act. Recent case law states that even those deprivations of liberty which arise out of private arrangements in private settings are the responsibility of the state where the local authority is notified of the arrangements. This is due to the responsibilities of local authorities to safeguard vulnerable adults.

In authorising a deprivation of liberty, an assessment must be undertaken of whether it is in the person’s best interests. A best interests decision is a balancing exercise, taking into account the current and past wishes and feelings of the person involved, particularly any past written decisions, their beliefs and values , the views of those involved in their care or interested in their wellbeing and any other factors that the person would consider if they were able to do so. Other factors may include their care needs and safety but the list of potential issues depends on the individual’s circumstances. People involved in care or interested in their wellbeing will often include family members and, where practicable, they should be consulted as part of the decision making process. Consideration also needs to be given to whether the proposed arrangements are the least restrictive way of meeting that person’s needs.

If there is no dispute, the deprivation of liberty can be authorised by the local authority in a hospital or care home setting by way of a “standard authorisation”. This can be challenged in the Court of Protection if the individual objects to the deprivation of liberty or a family member does not agree that the arrangements are in their best interests.

In other settings, e.g. an independent supported living placement or a person’s home, the deprivation of liberty must be authorised by the Court of Protection. If all parties are in agreement, a paper application can be considered by the court without any need for attendance. However, if there is a disagreement about the person’s best interests an application must be made for the court

to consider all of the evidence and make a decision about the individual’s best interests. This can be a lengthy process.

If you are concerned about whether the care and residence arrangements of a relative are in their best interests, you are welcome to contact us for advice on steps that you can take.