If a person who lacks the mental capacity to be able to make certain decisions about themselves has their right to freedom restricted or controlled, that person could be said to be ‘deprived of their liberty’.

The Mental Capacity Act 2005 states that a person without mental capacity can only be deprived of their liberty in certain circumstances.

In a recent case, a man suffering from dementia was moved to a care home 14 miles away from his family by Cambridgeshire County Council without the proper procedures being followed. The family complained to the ombudsman, who found the council guilty of maladministration.

In another case, Essex County Council has been left with a bill of almost £150,000 after they were found to have breached the human rights of a 91 year old dementia sufferer. They moved him to a care home without a Deprivation of Liberty Safeguards (often referred to as DoLS) authorisation against his will. The council has agreed to pay him £60,000 in damages, his legal costs of over £60,000 and to waive care fees of £24,000 for the 17 months he was kept in the home unlawfully.

The DoLS create a framework for authorising the deprivation of a person’s liberty when it is necessary to protect them from harm. The person must be unable to consent to the necessary care or treatment and any deprivation must be in their best interests

If the person concerned is within a registered care home or hospital then the supervisory body (eg the care home) can apply to the local authority for an ‘urgent’ or ‘standard authorisation’ to deprive them of their liberty. If the person concerned is residing anywhere else, then only the Court of Protection can authorise a deprivation of someone’s liberty.

Previously, records showed that applications for DoLS requests were fairly low; however following a decision by the Supreme Court in March 2014, known as the Cheshire West case, records now show a dramatic increase in the number of DoLS applications made.

In Cheshire West, the court considered the criteria for determining whether a person is deprived of their liberty and this has resulted in the number of applications increasing from an average of 13,000 per year, to over 55,000.

Whilst the increase in applications shows a welcome trend towards providers showing a willingness to protect the rights of individuals who might be deprived of their liberty, it has also resulted in a huge backlog of cases. Recently released figures show in September 2014, there were almost 20,000 outstanding applications.

Helen Dandridge, solicitor said:

“This backlog will create uncertainty for the person concerned and their family members. It could also result in that person coming to some harm, because any deprivation of a person’s liberty before the correct authorisation has been given is unlawful.”

Ridley & Hall’s Court of Protection team can provide more advice if you are concerned that a relative is being unlawfully deprived of their liberty. If a decision has already been made and you are unhappy with it, you may be able to challenge the decision. The Deprivation of Liberty Safeguards are complicated so make sure you take expert legal advice.

For more information regarding the Court of Protection, contact us on 01484 538421 or visit our Court of Protection Legal Centre website