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Mental Capacity

Deprivation Of Liberty Safeguards

Hospitals and care homes can legally restrict the freedom of people who can't make decisions for themselves in order to provide care and treatment - but only if they follow the Deprivation of Liberty Safeguards. If you or someone you know is facing restrictions that you think are unfair, we may be able to help.

Most of the time, hospitals and care homes can only provide treatment to adults if they consent to it. Some people with mental health conditions, brain injuries and other medical problems might not be able to provide this consent or make decisions about their care. In these cases, the caregiver can apply for authorisation to restrain the person, or prevent them from leaving their placement, in order to provide the care and treatment they need.

This is called a 'deprivation of liberty' and the Deprivation of Liberty Safeguards set out rules that care homes and hospitals must follow when they limit people's freedom in this way. The safeguards require that any deprivation of liberty is in the person's best interests and is formally authorised by independent professionals.

Our Public Law & Human Rights team can help with:

  • Challenging an existing deprivation of liberty authorisation for you or someone you know
  • Challenging unauthorised deprivation of liberty
  • Appealing decisions in the Court of Protection

Our solicitors have been involved with landmark Deprivation of Liberty cases, such as the Cheshire West case, which went to the Supreme Court and changed the law to require regular independent reviews for all people who are deprived on their liberty. This experience with the law at the highest level means we can offer you the best possible advice and representation.

If you are involved with a dispute about a deprivation of liberty, get in touch with us today to find out what our Public Law & Human Rights solicitors can do for you. Call free on 0800 028 1943 or fill out our online contact form and we'll get back to you.

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Deprivation Of Liberty Safeguards - More Information
    • What Is A Deprivation Of Liberty?
    • A deprivation of liberty is when an adult who lacks the mental capacity to consent to their care arrangements is under continuous supervision and control and is not free to leave their place of residence.

      Article 5 of the Human Rights Act forbids deprivations of liberty unless they are "in accordance with a procedure prescribed in law" - in this case, that law is the Mental Capacity Act 2005. The Act allows deprivation of liberty for adults who lack the mental capacity to make decisions for themselves, as long as it's in the person's best interests and is in accordance with the Deprivation of Liberty Safeguards outlined by the Act.

      If you think someone you know is being subject to a deprivation of liberty when they shouldn't be, we may be able to help. Get in touch with our team today - call 0800 028 1943 or fill out our online contact form and we'll get back to you.

    • What Are The Deprivation Of Liberty Safeguards?
    • Care homes and hospitals are only allowed to deprive adults of their liberty if they follow procedures set out by the Deprivation of Liberty Safeguards (DoLS).

      These safeguards are designed to make sure that deprivations of liberty are;

      • the least restrictive way of ensuring the individual's safety
      • in the individual's best interests
      • formally assessed and reviewed by independent experts

      The safeguards also set out certain rights for people who are being deprived of liberty. They provide people with a 'relevant person's representative' to represent them and monitor their care while they are under the deprivation of liberty. They also give people and their representatives, friends and family the right to challenge deprivation of liberty decisions that they disagree with.

      If you or someone you know is facing a deprivation of liberty and you believe that the safeguards have not been followed correctly, we may be able to help you make a legal challenge. Call our team today on 0800 028 1943 to find out more.

    • Who Can Challenge Deprivation Of Liberty Decisions?
    • We can help anyone who is involved on either side of a dispute over deprivation of liberty, including:

      • Individuals who are, or may be, deprived of their liberty
      • Their 'relevant person's representative' (RPR)
      • Their families
      • Independent Mental Capacity Advocates (IMCA)
      • Organisations providing care.

      We are also regularly instructed by the Official Solicitor, who acts on behalf of children and people with reduced mental capacity.

      If you are involved with a deprivation of liberty dispute, get in touch with our experts today by calling 0800 028 1943.

    • What Funding Is Available?
    • Legal Aid is available for deprivation of liberty cases and is not means tested for anyone who is subject to a Deprivation of Liberty Safeguards authorisation. This means that anyone in this situation can benefit from legal aid regardless of their financial position.

      In other cases, you can apply for means-tested legal aid. If your income is from state benefits, or if you're on a low income and don't have any significant savings, then you're likely to meet the means test for legal aid. The income or savings of other family members isn't usually taken into account. Other people may be able to benefit from Legal Expenses Insurance or fund their case privately.

      If you have any questions about the costs involved with a deprivation of liberty case and the funding available, please contact us to find out more.

    • Meet The Team
    • Our national team is ranked Number 1 for Human Rights law in the leading independent guides to the legal profession, the Legal 500 and Chambers & Partners. Our lawyers are members of the Court of Protection Practitioners Association (CoPPA), so you know you're dealing with genuine specialists.

      In addition to our legal expertise, we're skilful mediators and have helped many clients to negotiate solutions in hotly disputed cases out of court. With offices around the country, we can help anyone who finds themselves involved in a dispute over deprivation of liberty.

      Meet our team of Deprivation of Liberty Safeguards Lawyers

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Frequently Asked Questions

How Do Deprivation of Liberty Assessments Work?

DoLS assessments decide whether deprivations of liberty are allowed to happen.

Care homes and hospitals can request an assessment for adults who don’t already have deprivation of liberty authorisation. You can also request assessment review for an adult who is currently under deprivation of liberty authorisation if you think the deprivation is unnecessary.

Assessments are carried out by a best interests assessor and a mental health assessor appointed by the relevant local authority or health board. They must not be associated with the person’s care or any other decisions about their wellbeing.

The assessment covers six questions in order to decide if the deprivation of liberty should be authorised:

  • Is the person aged 18 years or over?
  • Do they have a mental disorder?
  • Do they lack the mental capacity to make decisions about their care?
  • Is deprivation of liberty in the person’s best interests?
  • Should they be detained under the Mental Health Act 1983 instead?
  • Would authorisation conflict with any advance decision the person has made or with any decisions made by a court-appointed deputy or someone with lasting power of attorney?

If the assessors authorise a deprivation of liberty, they will decide how long the authorisation should last, up to a maximum of 12 months. Care homes and hospitals must apply for a new assessment once this authorisation runs out in order to continue the deprivation of liberty any longer.

Care home and hospitals can grant themselves urgent DoLS authorisation for 7 days without an assessment in emergencies.

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What Does 'Lacking Mental Capacity' Mean?

Mental capacity is defined by someone's ability to make a decision. In order to have the capacity to make a decision, someone must be able to:

  • Understand what the decision involves
  • Remember information long enough to make a decision about it
  • Use and weigh up the information to reach a decision
  • Communicate the decision

If an adult is able to do all of these things, they have sufficient mental capacity to make a decision. They cannot be subject to a deprivation of liberty unless they agree to be.

If an adult is unable to do any of these things, they lack the mental capacity to make a decision.

Read more about how we can help people with reduced mental capacity on our Court of Protection page.

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