This is an area of law which is undergoing significant change yet which is of profound significance for vulnerable individuals. The following provides a brief overview of the current position.
Human Rights Act 1998
Article 5 of the Human Rights Act 1998 enshrines an individual’s right to liberty.
However those deemed to be ‘unsound of mind’ can be deprived of their liberty by the state as long as this follows a lawful process. The phrase ‘unsound of mind’ would apply to individuals who don’t have capacity to make decisions and who are subject to the provisions of the Mental Capacity Act 2005.
Mental Capacity Act 2005:
The legislation sets out two separate processes for a person lacking capacity to be deprived of their liberty, depending upon the location where their care is received.
- Deprivation within a care home or hospital:
To authorise a deprivation of liberty within a care home or hospital, there must be compliance with the Deprivation of Liberty Safeguards (DoLS), detailed at schedule A1 Mental Capacity Act 2005
- Deprivation within the community:
An authorisation can only be provided in relation to a deprivation within a community setting (eg the person’s own home or a supported living placement) by making an application to the Court of Protection.
What is a Deprivation of Liberty?
In the leading case of P v Cheshire West & Chester Council (March 2014) the Supreme Court provided an acid test to decide if someone without capacity had been deprived of their liberty.
A person can now be said to be deprived of their liberty if:
1. they are subject to continuous supervision and control; and
2. they are not free to leave (with the focus being not on whether a person seems to be wanting to leave, but on how those who support them would react if they did want to leave.)
The Position After P v Cheshire West
This truly was a watershed judgment which confirmed that many more people were deprived of their liberty than had previously been thought. The decision has now triggered a ten-fold increase in applications for authorisation and it is estimated that in the year 2015/2016 there will be:
- 176,000 standard authorisations by Local Authorities
- 30,000 authorisations by the Court of Protection
The increase in necessary authorisations has brought with it a consensus that the DoLS authorisation process for care home and hospital placements which is supervised by Local Authorities is no longer fit for purpose.
On this basis the Law Commission has been invited to review the safeguards and come up with proposals for an improved system. The Law Commission will produce their final proposals later this year.
In the meantime the Court of Protection has been seeking to produce a streamlined procedure to ensure that authorisations for deprivations within the community can be conducted efficiently and fairly given the increased workload.
A stalemate has unfortunately been reached in relation to individuals who do not have a friend or family member to participate in these court proceedings. A suitable representative for the individual is a required minimum procedural safeguard, but if a willing volunteer is not available then a paid professional must undertake this role. Unsurprisingly no public body has the resource available to meet this expense on the large scale anticipated.
In March 2016, Mr Justice Charles addressed this stalemate in the case of Re JM & Ors. He commented;
“I am sorry to have to record that in my view the stance of the Secretary of State (through officials at the MoJ and DoH) in these proceedings has been one in which they have failed to face up to and constructively address the availability in practice of such…representatives”
Judicial pressure has now been firmly applied to Central Government to come up with some solution to enable lawful process to be followed. Watch this space.
Unlawful Deprivations of Liberty & Damages Awards
It is a little known fact that an individual who has been unlawfully deprived of their liberty has a right to compensation.
Compensation should be awarded to an individual if the relevant deprivation of liberty process was not followed and, as a result, the individual was wrongly deprived or was excessively restricted.
Recent cases have attracted compensation in the region of £3000 – £5000 per month of unlawful deprivation, although this is guidance only and not binding.
It is widely believed that there are countless incidences of unlawful deprivations of liberty and that the potential liability for compensation claims could be highly significant.
The following are all signs that a deprivation of liberty may be unlawful:
- Local Authority forcing a person into a care home without consent or against their will
- The person or their family/friends not being involved in the authorisation process
- The person or their family/friends not being happy with their care
- The person or their family/friends not being told how to challenge or complain about their care
- Care which is overly restrictive/protective/risk averse
If you have concerns that someone you know may be subject to an unlawful or overly restrictive deprivation of liberty, please contact us to discuss whether we can help.