Mental Capacity

Deprivation of Liberty

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A person over the age of 16 is ‘deprived of their liberty’ if they do not have the mental capacity to make decisions about where they live and what care they receive and they are under continuous supervision and control and are not free to leave.

If a person is deprived of their liberty they are entitled to benefit from safeguards that the law provides to ensure that this is justified and as least restrictive as possible of the person’s rights and freedoms.

deprivation-of-liberty

ELIZABETH DID NOT LIKE LIVING AT THE CARE HOME AND FREQUENTLY ASKED TO RETURN TO HER OWN HOME.

Elizabeth’s Story

Elizabeth had dementia and lived alone in her own home with no support until she suffered a fall that led to her being admitted to hospital. Once in hospital, a doctor assessed her as lacking mental capacity to make decisions about where she should live and what care she should receive once she was discharged from hospital. A decision was made by care professionals and Elizabeth’s social worker that it was in her best interests to be discharged from hospital to a residential care home. Elizabeth did not like living at the care home and frequently asked to return to her own home.

What happened next?

Elizabeth was deprived of her liberty at the care home but the local authority failed to authorise this appropriately. After approximately 12 months the authorisation was put in place and Elizabeth started to receive support from an advocate, who contacted us to express concern about Elizabeth’s circumstances. We then acted on behalf of Elizabeth, on the instruction of her advocate and negotiated with the local authority so that Elizabeth could return home with a package of care. We also acted for Elizabeth in claiming compensation for the fact that she had been unlawfully deprived of her liberty.

Who Authorises Deprivation of Liberty?

If a person is deprived of their liberty in a care home or hospital, a local authority is likely to be responsible for authorising that deprivation of liberty and ensuring that the appropriate safeguards are in place. In certain circumstances, including where there is a dispute, or a person is deprived of their liberty at home or in placements in the community, the Court of Protection will need to authorise this.

Rapidly Changing Laws

A person who is deprived of their liberty should be able to challenge this if they wish to do so. However, the law in relation to deprivation of liberty is complex and rapidly changing. If you are involved in a dispute or are uncertain about how the deprivation of liberty safeguards work, it is important to seek specialist advice.

Legal Assistance after Deprivation of Liberty

Our expert team is very experienced in providing advice in relation to the deprivation of liberty safeguards and representing a range of people and care providers in proceedings relating to deprivation of liberty.

0800 044 8488