A local authority can legally restrict the freedom of a person who lacks the mental capacity to make decisions for themselves. But they must follow the Deprivation of Liberty Safeguards, which are guidelines set out to protect people in such settings who lack capacity to consent to their care and living arrangements. If you or someone you know are facing restrictions that you think are unlawful, we may be able to help.
If you’re held under unlawful restrictions, you’ll feel as though you’ve lost your basic human rights. You’ll be keen to get out of the situation you’re in. This is where we can step in and help.
What is deprivation of liberty in a care home?
Care homes can only provide treatment to an adult if they’ve received their consent to do so. Sometimes receiving consent from that person isn’t possible. Some people with mental health conditions or medical issues can’t provide consent because they lack the mental capacity to do so. In this situation, the care provider can apply for authorisation to restrain a person or prevent them from leaving. They can then provide care and treatment for the person.
A local authority will need to follow the rules set out in the Deprivation of Liberty Safeguards. These safeguards set out what the authority must do before and while limiting a person’s freedom. Any deprivation of liberty must be in the person's best interests. It also needs to be authorised by independent professionals.
In a care home, a deprivation of liberty can only be authorised by a standard authorisation issued by a local authority (known as the supervisory body). It is easier to challenge the deprivation of your liberty in the Court of Protection if there is a standard authorisation in place. It gives them access to support (usually paid professionals, although not always) in a role known as Relevant Person’s Representative or RPR. It also lets them access non-means tested legal aid so they can have access to legal advice.
However, sometimes local authorities do not properly follow these rules, and so are in effect unlawfully depriving someone of their liberty. The most common scenarios where someone has been unlawfully detained are:
- Where they lack capacity to consent to their care arrangements and there is no legal framework authorisation (such as under a standard authorisation under Deprivation of Liberty Safeguards or under the Mental Health Act)
- When someone has capacity and expresses a wish to leave but needs support to do so and this is not provided
- When someone lacking capacity has expressed a wish to challenge, but no one issued a case in the Court of Protection on their behalf.
Why choose Irwin Mitchell?
Being deprived of your basic human rights is a distressing situation. It can also be a complicated process to challenge. That’s why you’ll need the best legal support you can get.
We’ve got experience representing people in Court of Protection proceedings, as well as helping people make claims under the Human Rights Act.
Our lawyers have experience working with individuals who lack mental capacity. These individuals may find themselves being deprived of liberty in a care home through no fault of their own. We also offer a wide variety of other services that can be helpful for individuals who lack mental capacity, such as a representation in healthcare and human rights disputes or help with personal injury trusts.
If you believe you or someone you know is being held unlawfully in a care home, contact our expert team as soon as possible.
To arrange a discussion with no obligation, please call us on 0800 028 1943 or send us an online enquiry and we’ll get back to you.
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