LEGAL EAGLE: What is ‘deprivation of liberty’?

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My mother has been in a care home for a year. I have now been contacted by social services who say that they have put a ‘deprivation of liberty’ order on her and they want me to be her ‘Relevant Person’s Representative’. What does this involve?

A person who lacks capacity to make a decision to stay in a care home for the purposes of receiving care there, and who is both not permitted to leave their placement, and under close control or supervision while there is – for legal purposes – ‘deprived of their liberty’.

This means that the care home must apply to the local authority for what is called a Standard Authorisation (SA).

The local authority has to be satisfied about a number of things including that the placement is in the person’s best interests and that the person does indeed lack capacity to decide on living arrangements themselves.

If they are satisfied they issue the SA which authorises the care home to keep the person concerned there and look after her.

An SA can last a maximum of 12 months after which a fresh application has to be made. Whenever a SA is made a ‘Relevant Person’s Representative’ (RPR) must also be appointed. His or her job is to support and represent the detained person in exercising their rights under the Mental Capacity Act 2005.

In practice this means that if the detained person is objecting to their arrangements (or if the RPR considers that they are not in the detained person’s best interests) the RPR can ask the local authority to carry out a review, and/or apply to the Court of Protection under Section 21A MCA 2005 to ask the court to look at the placement and decide whether it is suitable.

The Court has wide powers to vary the SA, or to attach conditions to it, for example in relation to ensuring that the detained person has contact with family and friends, sufficient one to one care, or access to the community.

In the past problems have arisen when family members with their own strong views have been unwilling or unable to ‘support and represent’ their detained relative to get access to the Court of Protection.

It is up to you whether you agree to be your mother’s RPR. You should only do so if you are confident that you can stand back and consider your mother’s best interests objectively.

If you decide not to be RPR and there is no other suitable relative, the local authority will appoint a professional RPR.