Deprivation of Liberty

Many people in different care settings are deprived of their liberty by virtue of the type of care or treatment that they are receiving, or the level of restrictive practices that they are subject to, which they lack the mental capacity to provide valid consent for.

Deprivations of liberty are unlawful unless they are authorised by:
- the Mental Health Act 1983;
- the relevant local authority via the Deprivation of Liberty Safeguards scheme; or
- the court.
The recent changes in law mean that many situations which were not previously deemed to be a deprivation of liberty now are and require legal regularisation. The onus is upon YOU to ensure that all deprivations of liberty are identified and authorised. With the evolving case law in this area, it can prove problematic and you may find yourself asking questions such as:
- Is this person deprived of her liberty or not?
- When do my obligations kick in?
- I don’t have the resources to deal with this – can I put it off?
The law and CQC say you MUST act to ensure that all people who meet the criteria must have their deprivation of liberty properly authorised.

The leniency afforded over the past couple of years is drawing to a close. Commissioners, providers and care co-ordinators are required to urgently identify service users who are deprived of their liberty and rapidly take steps to put the right legal framework in place. Our team identifies circumstances where there is a deprivation of liberty and work with you to ensure that the legal and practical issues are dealt with efficiently and cost-effectively; including streamline applications to the Court of Protection and challenges under s.21A.

Bevan Brittan has been extremely helpful and prompt with all the legal advice required regarding cases in the Court of Protection proceedings. The advice has also been clear in the expectations required in court and personally supportive in the most difficult cases we have been dealing with.

Head of Continuing Healthcare and Individual Placements Clinical Commissioning Group,
At Bevan Brittan, our expert team work at the cutting edge of Court of Protection litigation and have been involved in many of the key decisions made in the past 3 years. This experience and expertise means that our lawyers can identify circumstances where there is a deprivation of liberty and work with you to ensure that the legal and practical issues are dealt with efficiently and cost-effectively.

We have invested in producing new cost-effective ways of working which will help you identify deprivations of liberty expeditiously and process the necessary paperwork. We now offer:
- Quick Reference Guide to the Deprivation of Liberty Safeguards and fixed fee training;
- Early Intervention Scheme and Triage; and
- Deprivation of Liberty Streamline Portal with fixed fee arrangements.
Our team has designed a bespoke, online, interactive tool for completing a Re X streamline application to the Court of Protection in a speedy and cost effective manner.

The DoL Streamline Portal guides health and social care practitioners to prepare the necessary information for an application to the Court of Protection, which is then reviewed by a member of our team before we submit it to court for authorisation on behalf of your organisation. It is a practical solution to the significant challenge for organisations responsible for putting the legal frameworks in place, delivered at a low cost, but with the reassurance of appropriate legal advice and support. Key features include:
- A system which combines a simple questionnaire with up-to-the-minute guidance;
- The reassurance that the documentation will be reviewed by a qualified lawyer prior to submission to court;
- The flexibility to decide how much work is done by you or your teams;
- A tracking and review facility so that you know what progress is being made whenever you want;
- A secure web-based environment for storing documents and managing applications;
- The system is available anywhere that has an internet connection including smart phones, tablets or computers, simply login using the web address.
Re RD and Others [2016] EWCOP 49

One of the most important challenges to the court of protection is how to ensure that vulnerable, incapable people can challenge steps taken to deprive them of their liberty. This is an issue at the heart of human rights where the need to protect has to be balanced against the need to respect autonomy and dignity. We acted in a test case brought before Baker J which considered how this issue should be managed by two classes of representatives under the Mental Capacity Act: Independent Mental Capacity Advocates (IMCAs) and Relevant Personal Representatives (RPRs). The case came down to finding some means of clarifying the legal boundaries which define when a patient can be said to be objecting to a deprivation of liberty and wanting to challenge it.

This case is important because it provides detailed guidance to RPRs and s.39D IMCAs to assist them in deciding whether or not they should bring an application to the Court of Protection to challenge P's deprivation of liberty. Prior to this decision there had been considerable uncertainty and regional variations in practice as to when a court application is required. Hopefully much of that uncertainty has now been resolved and unnecessary court applications will be avoided.

Re X [2015] EWCA Civ 599.

We acted on one of the cohort of Post-Cheshire West cases before the President of the Family Division, Lord Justice Munby (the Re X cases). This work included dealing with the impact of the lowering of the Deprivation of Liberty threshold in supported living accommodation cases. This debate remains at the forefront of the current Court of Protection difficulties in light of the changing legal position post Cheshire West. The case established the current Practice Direction 10A procedure.

Unreported Judgement – Interface with Safeguarding

We led a case involving the application of Deprivation of Liberty acid test in the community for a patient and the interface between safeguarding, Mental Health Act and the Court of Protection. The person was being cared for in the community (the only person with her condition being cared for at home in the country) but had to be sectioned to a mental health hospital due to the constant undermining of her care package by her family. Her family sought an injunction in the High Court and also appealed her mental health status to the Upper Tribunal. Bevan Brittan acted for the CCG responsible for her care package and led on proceedings in the various courts.
The recent delay to decision-making about the implementation of the Liberty Protection Safeguards has meant that commissioners and providers of healthcare will need to continue to use the Court of Protection to authorise a deprivation of liberty for anyone:
- aged 16 or over living in a community setting such as supported living, shared lives, with foster carers or in their own home / family home receiving a package of care, and
- 16 and 17 year olds.
The responsibility for ensuring that a person’s deprivation of liberty (DoL) is properly authorised lies with the relevant responsible commissioner for their care arrangements. Where a person is living in the community funded by NHS Continuing Healthcare, this would be the responsible ICB.

In most cases, these applications can be made via the Re X DoL streamline process. For 16 and 17 year olds, it is likely that there will be a hearing listed for the Judge to consider the circumstances.

How can we help you?

We have developed an online tool to assist Integrated Care Boards and local authorities in obtaining authorisation from the Court of Protection for persons who are being deprived of their liberty in a community setting and who fall outside of the scope of the Deprivation of Liberty Safeguards framework.

Our DoL Streamline Portal is a practical solution to the significant challenge to commissioners of compiling a Court of Protection application, delivered at a low cost, but with the reassurance of appropriate legal advice and support. It is a bespoke, online and interactive tool.

Key features
1. A system which combines a simple questionnaire with up-to-the-minute guidance
2. Early advice on whether a matter is suitable for the Re X process
3. The reassurance that the documentation will be reviewed by a qualified lawyer prior to submission to court
4. The flexibility to decide how much work is done by you or your teams
5. A tracking and review facility so that you know what progress is being made whenever you want
6. A secure web-based environment for storing documents and managing applications
7. The system is available anywhere that has an internet connection including smart phones, tablets or computers, simply login using the web address.
The DoL Streamline Portal is available at a low, fixed cost per application to enhance budget management.

For further information on the Portal, please contact Amrita Hurst.