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Community care

Deprivation of liberty

‘A gilded cage is still a cage’ proclaimed the UK Supreme Court when it considered the rights of vulnerable people to their liberty.  The leading judge said that the ‘acid test’ of whether a person was deprived of their liberty was whether they are under continuous supervision and control and are not free to leave.

The law recognises that people who are deprived of their liberty and who are said to lack capacity to consent to that deprivation need ready access to an independent review of this by a court.  As well as applying to people who are detained under the Mental Health Act 1983 [can we insert a link to the mental health page here] this also applies to people living in care homes, in supported living placements in the community and, in certain circumstances, in their own homes or hospital.

If you are a relative of someone who is being deprived of their liberty, or if you advocate for someone who is being detained, you may need legal advice.  The law in this area is complex and developing, with new arrangements for authorising deprivation of liberty of people (other than where sectioned under the Mental Health Act) currently due to come into force in October 2020.

We can advise on:
  • whether a family member should apply to be a party to Court of Protection proceedings which will consider whether it in a person’s best interests to be deprived of their liberty;
  • how someone who is the subject of Court of Protection proceedings concerning their deprivation of their liberty should participate in proceedings;
  • whether alternative options for a person’s residence and care which are less restrictive of their liberty should be pursued;
  • challenges to the assessments by social services of a person’s mental capacity to decide about the restrictions in their care plan which amount to a deprivation of their liberty; and
  • what remedies a person might have if they have been deprived of their liberty without lawful authorisation.

Miles & Partners is regularly instructed by the Official Solicitor and others (including relatives) acting as a ‘litigation friend’ for people who are subject of Court of Protection proceedings.

In addition, three of our solicitors, Rachel Turner, Floyd Porter and Andrew Bowmer, have been appointed as ‘Accredited Legal Representatives’ which enables them to represent people without the relevant decision-making capacity in appropriate court proceedings

Funding for legal advice or representation

Subject to your means, we may be able to obtain legal aid funding to bring a challenge to an unlawful decision.

Once we understand your circumstances, we will advise what funding might be available and discuss which payment options might work best for you.

 

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