It is possible for someone without mental capacity to be deprived of their liberty. The Deprivation of Liberty Safeguards (commonly known as DOLS) are designed so that the law can regulate this.
The deprivation of liberty safeguards are contained in a quite extraordinarily complicated schedule of the Mental Capacity Act. The judge who heads the Court of Protection said on BBC Radio 4 (‘The Report’ 24/11/11) that if three lawyers are asked what is meant by deprivation of liberty, there would be four different answers.
We acted for the patient in a case commonly referred to as Cheshire West (P v CWCC  UKSC 19) which ultimately determined in the Supreme Court what a deprivation of liberty is. There are three elements to this:
- (a) The objective element: this is present where someone is not free to leave their place of residence on a permanent basis and where they are subject to the continuous supervision and control of their carers
- (b) The subjective element: this is present where someone lacks capacity as they are unable to consent to such arrangements
- (c) The deprivation of liberty must be imputable to the state, that is to say that the state, usually in the form of the local authority social services or the Clinical Commissioning Group, are responsible for the deprivation of liberty.
As a result of the Supreme Court’s judgment, local authorities across the country have examined the arrangements in place for their incapacitated residents in care homes and in supported living arrangements, as well as those receiving substantial packages of care at home. Where a person is deprived of their liberty in a care home or hospital the administrative provisions of the Deprivation of Liberty Safeguards will apply and many more standard authorisations are now in place to give legal authority for the deprivation of liberty.
It is more complicated in independent living arrangements, as any deprivation of liberty can only be sanctioned by the Court of Protection. As of 17 November 2014, a streamlined law for applications has been introduced but there are likely to be modifications to this as the system starts to be used.
It is also necessary for any such deprivation to be kept under periodic review for not more than 12 months, by the local authority or the court as appropriate.
How we can help
We can act for incapacitated individuals and their families where a deprivation of liberty arises. There are circumstances where it is appropriate for this to be challenged and to do so an application must be made to the Court of Protection. We are very keen to assist in ensuring that those appointed as RPR (Relevant Person’s Representative) are able to fulfil their role and are happy to provide support to family members and advocates appointed to this role.
Where an individual who is subject to a standard authorisation wishes to challenge this, non-means tested legal aid can be made available. In all other cases we can determine your eligibility for means tested legal aid.
It is important that such matters are dealt with quickly and at odonnells we offer a tailored service to ensure that such applications that deal with fundamental issues of liberty are made with all due speed and expertise.
For more information
Having been involved in the developments to the law in this areas, we have written a guide which is available here and also to subscribers of Westlaw.
Why choose odonnells?
We offer a complete, joined-up service. The senior partner has personal experience of mental disorder in his family and has been involved with MIND, the mental health charity, for over two decades. This commitment runs throughout our practice, which specialises in every aspect of mental health law. From detention in hospital under the Mental Health Act 1983, to advising community patients, Lasting Powers of Attorney, guardianship, and Court of Protection, we know most answers because we have dealt with them. Specialism allows us to keep up to date with the flood of rules, regulations and case law pouring out of Tribunals, the Court of Protection and the European Court.
Even if the only question relates to the choice of care home or whether someone can go on holiday, a deep understanding of the law and procedure across the whole spread of mental health and capacity can save a good deal of worry, money and time.
We can see clients in the office, hospitals, care homes, or own homes. In difficult cases involving the deprivation of liberty safeguards which require our specialist expertise, we can travel anywhere in the country to advise and offer representation.