Deprivation of Liberty

The right to liberty is one of our basic human rights, so it is very important that if it appears necessary to restrict a person’s liberty for their own safety it is done so legally. Someone who lacks capacity to make decisions about where they should live and the care they receive may be deprived of their liberty. This can happen in a care home, hospital or in a community setting such as the person’s own home.

Local councils and hospital trusts are able to authorise the deprivation of liberty of people in residential care homes and hospitals if it is considered to be in the best interests of that person. This may include:

• The use of locked doors
• Continual monitoring or supervision
• Physical restraints
• The use of some types of medication

The Mental Capacity Act provides safeguards to ensure that people are not unlawfully deprived of their liberty. The Deprivation of Liberty Safeguards (DoLS) are vital legal guidelines that must be followed when depriving a person of their liberty. These safeguards include considering the person’s own wishes and feelings and ensuring that their care plan is reasonable, proportionate and encourages the least restrictive option for each decision.

A person who is deprived of their liberty has the legal right to appeal to the Court of Protection and our team is experienced in acting on behalf of the person themselves with the support of a litigation friend and on behalf of family members.

If you are concerned that your loved one’s liberty is being restricted improperly or unnecessarily, we can provide advice about challenging the authorisation. Concerns may arise if you think that:

• The regime is not in their best interests, proportionate or the least restrictive;
• The DoLS have not been followed properly;
• The person themselves is distressed, upset or objecting to the deprivation of their liberty; and/or
• The person concerned actually has mental capacity to decide their own movements and treatment

Legal Aid is available for people subject to an authorisation depriving them of their liberty in a hospital or care home and may be available for family members or those who are deprived of their liberty in other settings.