LEGAL EAGLE: Looking at the circumstances involving deprivation of liberty
What is deprivation of liberty? Many health and welfare applications in the Court of Protection relate to challenges against authorisations of Deprivation of Liberty, also known as s21A appeals.
Deprivation of Liberty Safeguards (DoLs) are in place to ensure people who lack capacity to consent to their care arrangements in a care home or hospital, for example people with dementia, or Alzheimer’s, are
protected if those arrangements deprive them of their liberty.
Arrangements are assessed to check they are necessary and in the person’s best interests. The Local Authority will carry out a number of assessments before implementing an authorisation of a deprivation of liberty.
This includes mental capacity assessments, best interest assessments and seeking the views of others such as family members or social workers involved. The assessment involves at least two independent assessors who must have training for their role, and they will stop the DoL being authorised if they do not think the necessary conditions are met.
An authorisation of a deprivation of liberty must only be used where absolutely necessary due to the restrictions it places on an individual’s freedom and it must be the least restrictive option available to ensure
the individual’s care needs are met.
How to challenge the deprivation of liberty: The Local Authority has an obligation to ensure that those subject to a DoLS authorisation have the right to challenge it before the Court of Protection. For example, if the person subject to the DoLS authorisation objects to the DoL by verbal objections or actions to indicate an objection, an application to the Court of
Protection might be made.
The person in the care home or hospital and their Relevant Person’s Representative (RPR) have a right to bring such an application. An RPR is appointed when the DoLS is implemented and can be for example family
members or a paid advocate. The RPR should assess the individual’s views and wishes, and if they are objecting to their deprivation of liberty the RPR should bring a challenge to the Court of Protection on their behalf, with the assistance of a solicitor if felt necessary.
What does the challenge mean?
Once an application has been brought to the Court of Protection, the Court will look at the evidence (i.e., risks of remaining at current placement and any alternative care provisions identified) and make a decision as to whether the placement is in the individual’s best interests. It is vital to ensure that other less restrictive alternative accommodation/care options have been considered and that the current care regime is the least
restrictive option in all the circumstances.