Free to leave? Can a hospital or care home deprive someone of their liberty?

On occasions, staff in a hospital or care home may believe that it is in the best interests of someone they look after to use physical restraints or medication to control their behaviour or to take steps to prevent them leaving a facility to keep them safe from harm. As a result, a patient or resident may not be free to come and go as they please and will, in effect, have been deprived of their liberty.

It is against the law for a hospital or care home to deprive someone of their liberty unless the person in question lacks mental capacity to consent to their treatment or care, and certain criteria are met and specific authorisation has been obtained from a supervisory body.

Floyd Porter at Miles and Partners in Central London specialises in helping people whose relatives have been held against their will. He explains the rules and what you can do to challenge a hospital or care home you believe has wrongly deprived your loved one of their liberty.

What is a deprivation of liberty?

If someone is subject to continuous supervision and control and is not free to leave their accommodation, it is likely that they have been deprived of their liberty. Examples of control which could amount to a deprivation of liberty is where the person is subject to regular use of physical restraint or medication to control their behaviour, or regular confinement to a certain area of a hospital, for example a specialist secured wing or isolation unit.

It does not matter whether the person or their family object to the restraint, medication or confinement being used, or whether they are willing to stay in the accommodation.

It also does not matter if they are living in their own home if they are subject to constant supervision or control and are not free to leave.

How can a deprivation of liberty be authorised?

Where a hospital or care home wants to restrict someone’s freedom to keep them safe, they must comply with the Deprivation of Liberty Safeguards. These require the hospital or care home to seek authorisation from a supervisory body. This will usually be the local authority responsible for the area in which the patient or resident normally lives.

Apart from in urgent cases, the hospital or care home has to fill in a form requesting authorisation, which the supervisory body then has 21 days to consider. Before deciding whether authorisation should be granted, the supervisory body will appoint independent assessors to determine whether the relevant criteria for deprivation of liberty have been met. The assessors will consider a number of things, including whether:

• the person is aged 18 or over, because if they are not a different assessment procedure will have to be used;
• the person lacks the mental capacity to make decisions for themselves, including decisions about the need for the proposed restriction, medication or confinement to ensure they receive the treatment or care they need;
• the proposed restriction, medication or confinement will in fact amount to a deprivation of liberty;
• it would be more appropriate for the patient or resident to be sectioned under the Mental Health Act;
• there has been no expression of wishes prior to the loss of capacity; and
• it is in the best interest for the individual to be deprived of their liberty.

The assessors will consider the views of any family, friends or paid carers who have expressed an opinion on whether the proposed measures are required. They will also consult the patient or resident’s mental capacity advocate, if one has been appointed.

If all the criteria are not met, the supervisory body cannot authorise the person’s deprivation of liberty and the hospital or care home will have to rethink the way the patient or resident is treated to ensure they are not deprived of their liberty.

How long can someone be deprived of their liberty?

If the criteria are met, the supervisory body can authorise the deprivation of liberty for a period of up to one year. However, they can limit it to a short period if they think this is in the person’s best interests. If after this time the hospital or care home believe deprivation of liberty is still needed, a further request for authorisation must be made.

Sometimes a patient or resident may need to be deprived of their liberty before the supervisory body has had time to make a decision; sometimes it may even be necessary for a patient or resident to be deprived of their liberty before the hospital or care home has had time to apply for authorisation. In these cases, it is possible for a hospital or care home to themselves authorise the deprivation of liberty for a period of seven days (extendable for a further period of seven days where necessary), provided that as soon as it becomes apparent that this will be necessary they arrange to submit an application for a standard authorisation to the supervisory body as well.

Where a deprivation of liberty authorisation is made, someone must be appointed to look after the patient or resident’s best interests. This can be a family member or friend or a professional advocate, and is referred to as the Relevant Person’s Representative

A deprivation of liberty authorisation must only be relied on for as long as it is required; as soon as it becomes apparent that the restriction, medication or confinement is no longer needed the deprivation must end.

How can deprivation of liberty be challenged?

It is possible to challenge a deprivation of liberty authorisation if you believe the criteria for making an authorisation has not been satisfied or the correct procedure has not been followed. In the first instance, you should raise your concerns with the hospital or care home. If this does not resolve the issue you can request a review by the supervisory body. If you are still concerned you can make a formal challenge in the Court of Protection.
For someone who is being deprived of their liberty somewhere other than a hospital or care home, an application for authorisation of that deprivation can be made at any time to the Court of Protection.

Conclusion

Everyone is entitled to their liberty and should only be deprived of it in very limited circumstances. If you believe that you or someone you know may be or being deprived of their liberty unlawfully you should take immediate advice to find out what your options are.

For a confidential discussion about deprivation of liberty, or any other Court of Protection or mental health law issue, contact Floyd Porter at Miles and Partners on 020 7426 0400 or email fp@milesandpartners.com.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.