Deprivation of liberty safeguards apply in England and Wales through the Mental Capacity Act 2005. This Act allows restrictions on a person’s personal freedom but only if those restrictions are in that person’s best interest.
If a care home or hospital intends to deprive a person of their liberty, they must request a standard authorisation from the Local Authority, who must then assess that person.
If a standard authorisation is granted, it is necessary to have a person appointed to represent the individual, and that will usually be a family member or friend. However legal representation is available and in some circumstances legal aid can fund that legal advice.
There are two elements that constitute a deprivation of liberty:
i. is the person subject to continuous supervision and control; and
ii. is the person free to leave (this is not whether a person wishes to leave but how those who support them would react if they tried to leave).
If the level of supervision is such that it can be seen to prevent a person leaving or moving freely then it is likely to be seen as a deprivation of their liberty. In these circumstances authorisation must be given for such a deprivation. The Court suggests that the following features may be indicative of a deprivation of liberty, and therefore requiring a standard authorisation:
i. Frequent use of sedation or medication to control behaviour;
ii. Regular use of restraint to control behaviour;
iii. The person concerned objects to the restriction or restraint either verbally or physically;
iv. Family or friends object to the restriction or the restraint.
v. There is a suggestion that parties may wish to go to the Court of Protection or have complained about the deprivation.
Hewitts Solicitors can represent and give advice to individuals subject to deprivation of liberty authorisations, or their representatives, and can advise during the initial process or in relation to an appeal.
We can also offer representation, advice and assistance in situations where individuals have been deprived of their liberty unlawfully, and may be entitled to some compensation as a result of this.