It is not nice to think that when we lose the mental capacity to make decisions for ourselves, that someone else has the responsibility of making those decisions for us – where we live, who we can see and when we can go out. It is becoming a more common scenario that if we cannot look after ourselves we may be taken into a care home setting where there may be a number of restrictions that are placed upon us. Sometimes, those restrictions can amount to a deprivation of a person’s liberty.
There have been some developments recently about what it means to be deprived of your liberty and who exactly falls into this category. A person can be deprived of their liberty if, they lack the capacity to make decisions for themselves about where they should live, who they should have contact with and whether they should go out on their own. Most commonly, this applies to people who reside in care home type placements or in a hospital setting.
A Deprivation of Liberty Safeguards procedure must be instigated by the Local Authority (or NHS trust if it is a hospital) to authorise such a deprivation. If a person is in a supported living setting then the Local Authority will need to apply to the Court of Protection to obtain authority to deprive someone of their liberty. They cannot authorise the deprivation themselves. If they have not done so, then the person they are depriving of their liberty is being deprived unlawfully.
It may be the case that you have a friend or relative in a care home or hospital setting that has restrictions placed on their liberty or movements. If that is the case, then the relevant authority needs to seriously consider whether or not that person, if they lack the relevant mental capacity, is being deprived of their liberty. If so, then as mentioned, there is a clear and formal procedure which they must follow.
If you are a relative or carer of the person in that setting, then the Local Authority are also under an obligation to consult with you about the deprivation, so that you have the opportunity to exercise an appeal against it if you feel this is the right thing to do. It is also good practice to have regular meetings to see if the person being deprived of their liberty continues to lack capacity and if so, whether it is necessary for the deprivation to continue.
At Chilcotts Law, we have the experience and expertise to help you in this specialist area of practice. If you have a friend or relative in a care or hospital setting and you would like further advice about any restrictions that may have been placed upon them, please feel free to call us to speak with one of our team.