Deprivation of Liberty

To have mental capacity means to:

• Understand what a decision involves
• Remember information long enough to make the decision
• Be able to “weigh up” information to reach a decision
• Communicate the decision to others.

If a person can’t do this, you might act as their deputy, attorney, or advocate. We can help you with the application process, or act as a deputy for them ourselves.

Care homes and hospitals can request assessments, which are carried out by a best interests assessor and a mental health assessor (who must be sufficiently independent of the person’s care).

These assessments consider:

• Whether the person is aged 18 or over
• Whether the person has a mental disorder
• Whether the person lacks the mental capacity to consent to the care arrangements
• Whether the deprivation of liberty is in the person’s best interests
• Whether the person should instead be detained under the Mental Health Act 1983
• Whether the deprivation of liberty would conflict with a relevant decision already made by the person, or by someone authorised to make decisions on their behalf
• If the assessments show that a deprivation of liberty is necessary, the local authority can authorise it for up to 12 months. If it is still needed after that, the care home or hospital must apply for a new authorisation.

In urgent cases, a care home or hospital can put an urgent authorisation in place for up to seven days while a standard authorisation is sought. In exceptional circumstances. The local authority can extend this for up to a further seven days.

The Court of Protection helps people who can’t make their own decisions due to a lack of mental capacity. If these decisions need to be made on an ongoing basis, the Court can appoint someone (a deputy) to make them.