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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 change in law with the Supreme Court decision in AGNI means that many situations which were deemed to be a deprivation of liberty may not be and may not require legal regularisation. However, the onus remains that it is on the relevant organisation involved 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?
Whilst there will now be far fewer individuals who are deprived of their liberty as the test in Cheshire West has been overturned, 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.
Commissioners, providers and care co-ordinators are still required to identify service users who are deprived of their liberty and ensure steps are taken to put the right legal framework in place. Our team identifies circumstances where there is a deprivation of liberty and works 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.
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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
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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.
We can help identify whether using the new test from the Supreme Court an individual is deprived of their liberty and requires a legal framework.
Where someone is not deprived of their liberty, if there are other issues such as safeguarding concerns or disputes about best interests we can offer advice and representation in Court of Protection proceedings or using the inherent jurisdiction.
We have expertise in children and young people and can advise on the considerations for those aged 16 or over living in a variety of settings including supported living, with foster carers or in the family home.
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