Within the Mental Capacity Act 2005, we have the Deprivation of Liberty Safeguards (DoLS). DoLS are in place for those who are in hospital, a care home or have supported living. Ensuring that the way in which they are being looked after does not restrict their freedom or only deprives their liberty in a safe and correct way if there is no alternative and it’s done in the best interests of the individual.
Deprivation of Liberty – Are there Any Exceptions?
A person must not be deprived of their liberty unless:
- by law (for example under the Mental Health Act 1983 under sections 2 or 3)
- by an order of the Court of Protection or as part of the Deprivation of Liberty Safeguard process (DOLS)
- it is necessary to carry out life sustaining treatment
A care home or hospital wishing to obtain authorisation to deprive someone of their liberty under the DOLS process must arrange for assessments to be carried out. If the person is to be detained in their own home then an application needs to be made to the Court of Protection for authorisation.
DoLs and the Court of Protection
The issue of Deprivation of Liberty was highlighted in Surrey County Council v P and others (Equality and Human Rights Commission and others intervening) (2014) and Cheshire West and Chester Council v P and another (2014). It has since changed the way in which the Court of Protection will be dealing with its Deprivation of Liberty applications in light of the increased workload following these cases. The Court of Protections looks to be moving towards a paper handling service where possible on applications Re X and others (Deprivation of Liberty) (2014).
We are yet to identify what this most recent case will mean for Deprivation of Liberty but this is certainly an area in which we may see considerable changes in the amount of applications and the application process itself. It is important to seek legal advice in this area, as it involves complex and extremely important issues. Visit our solicitors in Brighton today or call us on 01273 604123.