Unlawful Deprivation of Liberty in a Care Home

A deprivation of liberty would be justifiable if:

• A person lacks the mental capacity to consent to the care arrangements
• The local authority or Integrated Care Board is aware of these arrangements
• A person is confined to a certain place for a long period of time, under constant supervision.

Care homes and hospitals can request assessments, which are carried out by a best interests assessor and a mental health assessor (it cannot be someone who’s already associated with the person’s care).

It covers:

• Whether the person is aged 18 years or over
• Whether the person is aged 18 years or over
• If deprivation of liberty would be in the person’s best interests
• Whether they lack the mental capacity to make decisions about their care
• Whether they should be detained under the Mental Health Act 1983 instead
• Whether a deprivation of liberty would conflict with any previous decision the person made, or with any decisions a deputy or attorney made.

If the assessors authorise a deprivation of liberty, they’ll decide how long the authorisation should last (up to a maximum of 12 months, after which the care homes or hospital have to apply for a new assessment). In emergencies, hospitals can grant themselves urgent DoLS authorisation for seven days.

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, if it's in the person's best interests and is in accordance with the law. There are three elements that need to be present before a care arrangement can be said to amount a deprivation of liberty:

Objective: A person’s confinement to a certain place for a not negligible length of time, and that person is subject to constant supervision and control and is not free to leave.
Subjective: lack the mental capacity to consent to the care arrangements
State immutability: the local authority or Integrated Care Board are aware of the care arrangements (these agencies may be funding the care).
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.

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.