Deprivation of liberty

Certain vulnerable adults may need to be placed in a care home or hospital because it is in their best interests and necessary in order to protect them from harm. In these circumstances, if they are not able to leave, they may be deprived of their liberty.

The European Convention on Human Rights provides that a deprivation of liberty can only be put into place under a procedure prescribed for by law, with the possibility of applying to a court or tribunal for a speedy review of the detention.

Where adult is detained under the Mental Health Act, they are able appeal to the Mental Health Tribunal, which means that their rights under the European Convention on Human Rights are protected. For information on the Mental Health Tribunal click here.
 
Where an adult who lacks capacity is not being detained under the Mental Health Act, but they have been placed within a care home or hospital from which they are not able to leave, a separate set of regulations may apply.  These are known as the “Deprivation of Liberty Safeguards” or “DOLS.”

The Mental Capacity Act was amended in 2007 in order to breach what had become known at the “Bournewood gap”, following the decision of the European Court of Human Rights in HL v UK. “The Bournewood gap” refers to the former situation where certain adults, who did not meet the criteria for detention under the Mental Health Act, were nonetheless detained in care homes of hospitals without proper safeguards. The Deprivation of Liberty Safeguards are set out in Schedule A1 of the Act which aims to protect adults who lack capacity and who are deprived of their liberty, by ensuring that the adult is not detained arbitrarily . The deprivation of liberty must be in the best interests of the adult who lacks capacity and must be necessary in order to protect them or others from harm.

Challenges to the use of DOLS are heard by the Court of Protection.

In some cases DOLS cannot be used, for example because the person without capacity is living in their own home in circumstances that deprive them of their liberty.  In these cases it may be necessary to apply to the Court of Protection for an order to protect their rights.

The members of our mental health team are able to advise family members or carers who need advice about any issue that relates to deprivation of liberty and vulnerable adults.

For a recent example in which Sophy Miles acted for the Official Solicitor concerning a case involving Deprivation of Liberty click here.

For a consultation with one of our Mental Health Team please call us on 020 7426 0400 or email us on office@milesandpartners.com.