A recent case has highlighted the struggles that local authorities face dealing with cases involving the deprivation of liberty of vulnerable people.

The deprivation of liberty safeguards (DoLS) are part of the Mental Capacity Act 2005 and aim to protect the human rights of people in care homes, hospitals and supported living to ensure that they are looked after in a way that does not unduly restrict their freedom.

In the widely reported 2014 case of Cheshire West, the Supreme Court set an ‘acid test’ to determine whether someone is being deprived of their liberty. Since then, there has been an exponential increase in cases that the local authorities have had to consider.

In essence, if someone lacks mental capacity to make decisions about where they live, or their care or treatment (for example as a result of dementia) then, depending on their circumstances, they may be deprived of their liberty. The recent case of AJ [2015] EWCOP 5 has now added to local authorities’ woes.

In that case Mr Justice Baker criticised the appointment of a relevant person’s representative (RPR). Under the DoLS anyone who is subject to a deprivation of liberty must have a RPR appointed on their behalf. The role of the RPR is to support the vulnerable person and put forward their views on the deprivation of liberty. If the person objects to any part of the deprivation, the RPR is supposed to challenge the local authority and if necessary bring an application to the Court of Protection – which is the specialist court that deals with cases affecting those lacking mental capacity. RPRs are entitled to non means tested legal aid in order to bring such applications before the court.

As part of the authorisation process for someone to be deprived of their liberty, a best interests assessor must carry out an assessment; part of that includes recommending who should be the RPR. Usually they will recommend a relative, friend or carer if they feel they are suitable for the role. If an attorney or deputy is already in place they may be recommended as the RPR. The local authority can then choose whether to appoint that person or not. If there is no one suitable the local authority will appoint a professional to be the RPR; usually this will be an independent mental capacity advocate (IMCA) as they have experience of working with and putting forward the views of those who do not have capacity to make their own decisions.

However IMCA’s must be paid for the services they provide.

In the case in question, which has just been decided, AJ was a lady in her 80s suffering from dementia and living with her niece and her niece’s husband. The local authority wanted to move her into a care home – which would have deprived her of her liberty, hence the need to appoint an RPR. The niece’s husband was appointed by the local authority along with an IMCA to support him. However despite the RPR knowing that AJ objected to being moved into a care home, no challenge was brought until 6 months after she was moved. In this case it was clear that the niece’s husband’s views conflicted with those of AJ and he was not an appropriate person to be appointed.

Because the judge expressed concern about the appropriateness of a relative being appointed as an RPR, local authorities are now having to turn to IMCAs much more frequently. In a world where their budgets are being continually squeezed it only serves to add more strain to a system struggling to cope.

Helen Dandridge, a solicitor and specialist in the Court of Protection commented:-

“It’s vitally important that the most vulnerable members of society have their human rights protected. Legal aid may be available so families should not be fearful about asking for help in this sort of case.”

Helen is a solicitor and specialist in Court of Protection cases. As a litigator she has a reputation for advising clients effectively and accurately and acting decisively when necessary. Helen always aims to provide practical solutions and will seek to negotiate to achieve a workable solution without going to court if that is possible.

Ridley & Hall’s Court of Protection team can provide 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 DoLS are complicated so it is important to take expert legal advice. Please contact us on 01484 538421.