Deprivation of Liberty Safeguards

When a vulnerable person is deprived of their liberty, and in circumstances where they cannot consent to this, they will generally become subject to an ‘authorisation’. 

An authorisation gives permission to the managing authority (which will either be the hospital ward or a care home) to lawfully deprive a person of their liberty. This is to ensure that the person’s Article 5 rights under the ECHR are not being broken. A supervisory body will then consider the request and grant the authorisation. The supervisory body is usually a local council if a person is living in a care home, or the supervisory body could be the local Health Board if the person is admitted to a hospital in Wales. However, before an authorisation can be put into place, certain requirements need to be met.

If a person needs to be deprived of their liberty urgently due to there being a particularly high risk of harm, the managing authority is able to use an urgent authorisation. An urgent authorisation can only be used if the managing authority has a reasonable belief that a standard authorisation would be granted, and if a standard authorisation is applied for at the same time.

Urgent authorisations are granted by the managing authority itself, and therefore do not need to be sanctioned by the supervisory body. However, a person can only be deprived of their liberty for up to seven days using an urgent authorisation and this can only be extended for a further 7 days. If a standard authorisation is not in place after this time, a person is potentially unlawfully deprived of their liberty, which would be a breach of their rights under Article 5 of the European Convention on Human Rights. 

The Deprivation of Liberty Safeguards (“DoLS”) are a set of checks which form part of the Mental Capacity Act 2005. These checks are aimed at ensuring that people who cannot consent to their own residence and care, and are therefore deprived of their liberty, are protected. 

The safeguards ensure that, when a person is deprived of their liberty, the circumstances and restrictions under which they are placed are properly assessed (i.e. that they are necessary, proportionate and in the person’s best interests). In addition, the safeguards provide that the deprivation is applied for within a set period of time and reviewed at regular intervals.

Another safeguard is that the person being deprived of their liberty has the right to a representative (known as the ‘relevant person’s representative’). This can be either a paid representative such as an advocate or a relative or friend of the vulnerable person. The representative is given certain rights and looks out for the vulnerable person’s best interests. They can request a review of the person’s deprivation of liberty (called a Part 8 Review) and they can also speak to a solicitor to make an application to the Court of Protection to challenge their deprivation. This is known as a section 21A challenge and legal aid is available for this sort of application.

If you believe that your loved one lacks capacity to make a certain decision, or they have already been deemed by a professional as lacking the necessary capacity, we can help you. Our team of specialist lawyers have extensive experience in dealing with capacity issues, both during a person’s lifetime and after someone has passed away.

We can guide you through the process and assist with instructing a professional to carry out a capacity assessment for your loved one. If capacity has already been assessed, or you are questioning the capacity of a loved one after they have passed away, we can obtain and analyse any documentary evidence, such as capacity assessments, medical records and will files, and advise you in regard to the next steps and options available to you. 

Different rules apply in the Court of Protection depending on whether the application concerns property and financial affairs or health and welfare issues.

In cases relating to property and financial affairs, the costs of proceedings will usually be met by the person lacking mental capacity. In cases relating to a person’s health and welfare, the general rule is that each party must bear their own costs. This means that you will generally be responsible for your own legal fees.

However, the Court of Protection does have the power to depart from these rules, should this be justified in the circumstances. For example, if one party has acted unreasonably in making an application, failed to co-operate with the other parties or failed to comply with a rule or Court Order. We can advise you as to the merits of making a costs application or where there is a risk of a costs application being made against you.