Deprivation of Liberty Safeguards (DOLS)
In certain circumstances where decisions are made in the best interests of a person who lacks capacity to make decisions about their residence and care, the result may be that their placement or care arrangements amount to a deprivation of their liberty. This is the case even if it is agreed by all parties involved in the person’s life that this is necessary and appropriate.
A deprivation of liberty occurs where a person:
• Lacks capacity to make a decision about their care arrangements;
• Is subject to continuous supervision and control;
• Is not free to leave
In addition, those arrangements must be “imputable to the state”, so in some way the responsibility of the state. Recent case law states that even those deprivations of liberty which arise out of private arrangements in private settings are the responsibility of the state where the local authority is notified of the arrangements. This is due to the responsibilities of local authorities to safeguard vulnerable adults.
In order for a deprivation of liberty to be lawful, it must be authorised and there must be a way of challenging it in the Court. This is to protect the individual’s right to liberty under the European Convention on Human Rights. When considering whether a deprivation of liberty is in a person’s best interests, consideration needs to be given to whether it is the least restrictive way of meeting their needs.
Deprivation of liberty in a care home or hospital setting can be authorised by a local authority in certain circumstances. If the individual objects or a family member disagrees with the deprivation of liberty, an application should be made for the Court of Protection to consider the case. Where a deprivation of liberty arises in other settings, e.g. a person’s private residence or an independent supported living placement, authorisation of the Court is required. This is the case even when the matter is non-contentious. Where there is a dispute about whether a deprivation of liberty is required, Court proceedings can be lengthy including numerous hearings, complex legal issues and expert evidence. It is essential to get the right advice and representation from the beginning to help you through the proceedings.
We have assisted numerous family members of incapacitated individuals in deprivation of liberty cases. We can support you in various ways including the submission of representations to the local authority to ensure they recognise and act upon a deprivation of liberty, the preparation of witness statements agreeing to or contesting a deprivation of liberty, through to full representation throughout Court proceedings
If you require advice about deprivation of liberty or more general issues around the health and welfare of an incapacitated individual, please contact us for further information.
Mrs Turnbull is a 75 year old woman who lived with her son, Dave, for many years. She was diagnosed with dementia three years ago. Since then there has been a decline in her ability to care for herself. After a fall at home and a short admission to hospital, Mrs Turnbull was admitted to a care home for a period of rehabilitation. The local authority has authorised her deprivation of liberty in the care home.
The local authority’s social worker has assessed that Mrs Turnbull’s needs can no longer be met at home and that she needs to remain resident at the care home. Mrs Turnbull agreed to go to the care home as a temporary measure but does not want to remain there in the long term. Dave is of the view that his mother can make decisions about where she lives and the care she requires. He believes that her needs can be met at home with a little assistance from carers. Dave’s siblings support the social worker’s view.
An application is made to the Court of Protection. Before making any decisions in Mrs Turnbull’s best interests, the Court must consider whether she could make that decision for herself. Only if she lacks capacity can the Court balance the competing views and make a decision about her care, residence and the necessity for her to be deprived of her liberty. Mrs Turnbull, Dave, the local authority and the other family members can all be parties to the Court of Protection proceedings and receive their own legal advice and representation.
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