Is your relative being deprived of their liberty?
This March, the Supreme Court made an important ruling in the cases of P v Cheshire West and Chester Council; P and Q v Surrey County Council, which impacts on people who lack mental capacity and are under constant supervision and are not free to leave their care placement. Freedom of liberty is a very important human rights concept as it gives everyone the right not to be ‘locked up’ without good reason or proper authorisation.
A person who lacks mental capacity to consent or object to their care and placement cannot legally be deprived of their liberty unless it has been authorised either through a procedure known as the ‘Deprivation of Liberty Safeguards’- commonly known as ‘DOLS’ or a court order, which is subject to regular independent checks. The purpose of DOLS is to ensure that there is an independent professional assessment of (a) whether the person concerned lacks the capacity to make their own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it is in their best interests to be detained. A court order is required for people who are being deprived of their liberty in another setting, such as a supported living placement. If a person is deprived of their liberty without proper authorisation, they (or someone on their behalf where they lack mental capacity) can claim compensation.
What amounts to a deprivation of liberty?
The Supreme Court had to consider the criteria for judging whether the living arrangements made for a mentally incapacitated person amounted to a deprivation of liberty.
The first case, concerned ‘P’ an adult born with cerebral palsy and Down’s syndrome who lived in a staffed bungalow with other residents and had one to one support to enable him to leave the house frequently for activities and visits. At times, P would pull apart his incontinence pads and insert them into his mouth. This required his carers to take action to remove the objects from his mouth.
The second case, involved sisters, P and Q (otherwise known as MIG and MEG) who both had learning disabilities. MIG lived with a foster mother and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG lived in a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication.
The Supreme Court said that everyone, regardless of whether or not they are mentally or physically disabled had to same rights to liberty. A person is deprived of their liberty if they are under continuous supervision and control and are not free to leave, and the person lacks capacity to consent to these arrangements. P, MIG and MEG were all found to be deprived of their liberty.
The Supreme Court held that factors, which are NOT relevant to determining whether there is a deprivation of liberty, included:
- the person’s compliance or lack of objection
- the reason or purpose behind a particular placement
- the relative normality of the placement, given the person’s needsThis means that the person should not be compared with anyone else in determining whether there is a deprivation of liberty. However, young persons aged 16 or 17 should be compared to a person of a similar age and maturity without disabilities.
Deprivation of liberty in “domestic” settings
A deprivation of liberty can also occur in any domestic settings where the State is responsible for imposing such arrangements. This will include a placement in a supported living arrangement in the community. Where there is, or is likely to be, a deprivation of liberty in such placements that must be authorised by an order from the Court of Protection.
What does this mean?
People who lack the mental capacity to make decisions for themselves, whether as a result of dementia, learning disabilities, brain injury or mental health problems and are under the constant supervision of paid staff and are not free to leave may be subject to a deprivation of liberty. Local authorities throughout England and Wales will be reviewing people living in care homes, hospitals and supported living accommodation to make sure that these people are not being deprived of their liberty and if they are proper authorisation will be to be arranged by those depriving the person of their liberty. People deprived of their liberty should have the benefit of regular independent reviews to ensure that their placement and any restrictions on their movement are in their best interests.
Written by Caroline Bielanska, TEP, Solicitor, 13.5.14
This information is a basic summary of the legal position. It is not advice nor is it to be treated as a substitute for getting full and specific legal advice.
WHERE IS THE CARE WISH TO THANK CAROLINE FOR PROVIDING THIS ARTICLE AND FOR ALL HER PAST INVALUABLE HELP