Deprivation of Liberty & Human Rights

Is placing a person in care a breach of their human rights?

Every person has a fundamental right to liberty pursuant to Article 5 of the Human Rights Act 1998. This ensures that we should only be deprived of our liberty if a lawful process is followed.

Placing a person who lacks mental capacity into a residential care setting such as a care home or a hospital is acknowledged to be a deprivation of their liberty and therefore must follow a strict process to ensure that the person’s human rights are not breached.

In 2009 the Deprivation of Liberty Safeguards (DoLS) were introduced. The DoLS set out a specific authorisation procedure to ensure the person’s rights were being protected. It also included a provision which enabled the deprivation to be challenged by the individual or the person who was acting on their behalf. E.g. their family, a friend or a formally appointed Independent Mental Capacity Advocate (IMCA).

The Supreme Court has given a clear direction on this and stated that the acid test, as to whether a deprivation of liberty within a care setting has occurred, is:

  • The person is under continuous supervision and control;
  • They are not free to leave; and
  • They lack capacity to consent to these arrangements.

If a person falls within this criteria they are potentially being deprived of their liberty.

What happens if a deprivation of liberty has taken place?

If the deprivation of liberty is taking place in a hospital or care home setting it will have to be authorised by the relevant Local Authority. This authorisation will require a best interest’s assessment of the individual and should take into account the views of the individual or their family, a friend or an IMCA who is supporting them. The authorisation should only be given on the basis that the deprivation is the least restrictive option available. If this process has not been followed then the deprivation is unlawful and can be challenged.

If a deprivation of liberty is taking place outside of a hospital or care home setting, it instead needs to be authorised by the Court of Protection for all individuals over the age of 16.

If a deprivation does not follow the above process then it will be unlawful. In certain circumstances this could lead to a claim and result in the person being awarded damages for breach of their human rights.

How can SAS Daniels help with deprivation of liberty and human rights?

We can help you to understand the process which should be followed in order to ensure a deprivation of liberty is lawful, whether this in relation to a Local Authority authorisation or by application to the Court of Protection.

We can also advise on unlawful deprivations of liberty, how these can be challenged and whether there is a possibility of recovering damages for a breach of your human rights.

This is an extremely complex and rapidly evolving area of law. If you would like further advice or assistance please contact a member of our specialist team.