Deprivation of liberty solicitors

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    Our specialist team of mental capacity solicitors supports people facing issues relating to deprivation of liberty under the Mental Capacity Act.

    We have extensive knowledge in this complex area of law and a deep understanding of the worry, concern and difficulties people can face in relation to it.

    Our mental capacity teams support people every step of the way and understand the sense of urgency that can be involved when a local authority, hospital or care home is depriving someone you care about of their liberty.

    We can support you across England and Wales. Do get in touch to discuss how we can help.

    Who our deprivation of liberty lawyers can help

    People our deprivation of liberty lawyers support include:

    • parents whose grown up child is being deprived of their liberty
    • people who have a loved one who has been sectioned
    • advocates for people lacking mental capacity
    • individuals who have been deprived of their liberty by a caregiver
    • people with dementia, autism and learning disabilities
    • anyone facing issues relating to lack of mental capacity/the ability of an individual to make their own decisions.

    We help people to challenge deprivation of liberty authorisations for themselves or people they know.

    We also work with people to assess whether deprivation of liberty was properly approved and to challenge cases that were not authorised in the right way.

    We’re experienced in all aspects of Court of Protection work and appealing decisions there.

    We also support families or advocates who care about someone who lacks mental capacity to make their own decisions and may need to be subject to a deprivation of liberty order for their own health and protection. We have extensive experience in deputyship and lasting power of attorney matters.

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    We supported Elizabeth* to return to her own home and access compensation after she was unlawfully deprived of her liberty.

    Help and compensation for dementia sufferer unlawfully deprived of liberty

    We supported Elizabeth* to return to her own home and access compensation after she was unlawfully deprived of her liberty.

    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.

    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.

    We work with families and advocates in a variety of circumstances to ensure the best interests are met of people who lack mental capacity to make their own decisions.

    *Name has been changed.

    What is deprivation of liberty?

    Deprivation of liberty means taking away someone’s right to freely move around and live where they want to live.

    Proper processes must be followed when someone is deprived of their liberty and it can only be done in accordance with the Mental Capacity Act 2005 and/or Court of Protection.

    Where deprivation of liberty safeguards have been followed, care givers can legally deprive someone of their liberty when it is in their best interests to keep them safe or is the least restrictive way to ensure they get medical treatment.

    Deprivation of liberty can include:

    • being kept in a locked room or ward
    • not being free to go anywhere without supervision or permission.

    People may be subject to deprivation of liberty in care homes, hospitals or in their own home. This can be challenged whether proper processes have been followed or not. Reviews are important too.

    Is deprivation of liberty the same as being sectioned?

    ‘Deprivation of liberty’ is a different legal process to being sectioned, though both may result in being kept in hospital.

    Being sectioned, also known as being ‘detained under the Mental Health Act 1983’, is carried out under different sections of that act. The detail around how long someone can be detained differs depending on which section of the act they are held under.

    It is not necessary to require medical treatment in order to be deprived of your liberty, but correct legal processes must still be followed.

    Our mental capacity solicitors can support you in cases relating to deprivation of liberty and detention under the Mental Health Act (being sectioned).

    Who can authorise 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.

    It is possible to challenge deprivation of liberty. If you have not got an answer you are happy with via other formal or informal methods of raising a concern – or if you are worried about raising a concern about deprivation of liberty – our solicitors may be able to help. Do contact us for advice with this.

    Can I challenge the deprivation of liberty?

    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.

    We’re very happy to offer free initial no obligation guidance on your options. Do get in touch.

    When can the deprivation of liberty be considered unlawful?

    If proper processes have not been followed and someone is being deprived of their liberty it may be unlawful.

    Liberty (freedom to move around) can only be taken away by health professionals is they follow the ‘Deprivation of Liberty Safeguards (DoLS)’ or if the Court of Protection has allowed it.

    The Court of Protection must make an order if someone is being detained in their own home.

    If you are concerned that processes may not have been properly followed or are worried that someone’s liberty is being denied to them when it should not be, contact us for advice.

    If someone’s liberty has been unlawfully denied they may be entitled to compensation.

    What are the Deprivation of Liberty Safeguards (DoLS) / Liberty Protection Safeguards?

    The deprivation of liberty safeguards are being replaced by the Liberty Protection Safeguards.

    The key elements of both sets of safeguards centre around a set of principles to ensure that depriving someone of their liberty under the Mental Capacity Act is only done in their best interests and when other options have been exhausted.

    Every effort needs to have been made to avoid depriving someone of their liberty and it should be the least restrictive remaining way to keep them safe.

    If you are worried the safeguards have not been followed or you disagree with the ruling in relation to a deprivation of liberty order, we may be able to help. Get in touch.

    Roles and responsibilities of a Deputy

    Where someone lacks the capacity to manage their own affairs then an application to the Court of Protection will need to be made for a Deputy to be appointed.  The role of a Deputy is to manage their affairs for them.  That Deputy can either be lay (for example a family member) or professional (for example a Solicitor).

    Even though someone has been assessed by a medical expert as lacking the capacity to manage their own affairs the Deputy will still work closely with them and provide all practicable assistance and support to help them make their own decisions.  In the event that is not possible the Deputy will need to make whatever decisions are necessary and are in the best interests of that person. Just because someone has been assessed as lacking capacity does not mean they should be treated as being unable to make any decisions.

    To find out more, visit our dedicated guide.

    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