Challenges to deprivations of liberty
Sometimes it is necessary for a hospital, care home, or other care provider to place restrictions on the freedom of movement of a vulnerable person (P) in order to keep them safe and to provide them with treatment or care.
Where P lacks capacity to consent to that care arrangement and is subject to restrictions which amount to ‘continuous supervision and control’ and P ‘is not free to leave’ the law regards P as being deprived of his/her liberty and legal safeguards are required to ensure that P’s human rights are protected. P’s compliance or lack of objection to such restrictions and the relative normality of those restrictions for P are not relevant considerations in this context.
Examples of restrictions which may amount to a deprivation of liberty in a hospital or care setting include:
- Administration of sedative medication
- Restrictions placed on P’s movements within the care setting
- A care plan which provides that P can only access the community with an escort
- A keypad entry/exit system which P is unable to use
- Use of physical restraints
- Use of bed rails to confine P to his/her bed
- Close monitoring and observation of P
- Restricting who P can have contact with
The Deprivation of Liberty Safeguards (or DoLS) set down a legal process which hospitals and care providers are required to follow in order to ensure that any deprivation of liberty is in P’s best interests and is formally authorised. The authorisation process differs depending on where the care is being provided. If the deprivation of liberty arises in a hospital or care home setting, an application for a DoLS authorisation must be made by the hospital/care home (the ‘managing authority’) to the local authority (the ‘supervisory body’). If the deprivation of liberty arises in a supported living placement or in P’s own home (where there is a care package in place) then a DoLS authorisation can only be obtained from the Court of Protection.
Every person subject to a DoLS authorisation must have a Relevant Person’s Representative appointed (usually a family member, friend or carer) whose role it is support and advocate for P.
If a DoLS authorisation has been granted depriving a family member or friend of their liberty and either you or they disagree with it, then you may be able to bring a challenge. If you are the named Relevant Person’s Representative then you can in the first instance ask the local authority to review the authorisation. If your concerns are not resolved on review the next step is for you to make an application to the Court of Protection to challenge the DoLS on behalf of P. Our Court of Protection team can provide advice, guidance and representation throughout this process.
Likewise if you are concerned that a family member, friend or someone you are caring for is being deprived of their liberty without a proper authorisation in place, our team can provide advice, support and representation on bringing a challenge.
Deprivation of liberty is a complex area of law which has been subject to a considerable amount of change in recent years so we recommend that you seek legal advice at an early stage if you are considering bringing a challenge.
Please do not hesitate to contact us should you require any assistance.