In certain circumstances where decisions are made in the best interests of a person who lacks capacity to make decisions about their residence and care, the result may be that their placement or care arrangements amount to a deprivation of their liberty. This is the case even if it is agreed by all parties involved in the person’s life that this is necessary and appropriate.
A deprivation of liberty occurs where a person:
- Lacks capacity to make a decision about their care arrangements
- Is subject to continuous supervision and control
- Is not free to leave
In addition, those arrangements must be “imputable to the state”, therefore in some way the responsibility of the state. Recent case law states that even those deprivations of liberty which arise out of private arrangements in private settings are the responsibility of the state where the local authority is notified of the arrangements. This is due to the responsibilities of local authorities to safeguard vulnerable adults.
Deprivation of liberty is commonly associated with elderly people who may be suffering from dementia but can also apply to other vulnerable adults.
In order to be lawful, a deprivation of liberty must be authorised and there must be a way of challenging it in the Court. This is to protect the individual’s right to liberty under the European Convention on Human Rights.
If you want to challenge a Local Authority’s decision to deprive someone of their liberty, we provide the advice and support you need. You have the right to appeal to the Court of Protection against deprivation of liberty decisions and we can guide and support you through every step of the process.