The Court of Protection is a court that deals with decisions or actions taken under the Mental Capacity Act. The Court performs a vital function by advocating on behalf of people who are deemed mentally incapable of making their own decisions by making decisions for them about their money, property, health or welfare.

One of the most significant powers available to the Court of Protection authorising for a person to be deprived of their liberty in their best interests.

What is a Deprivation of Liberty?

The Human Rights Act states that ‘everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty unless in accordance with a procedure prescribed in law.

Caring for a person can involve reducing their freedom and independence in some way. If a person is being cared for in a hospital or care home, it may even be the case that day to day decisions are being made for them and they may not be allowed to leave. This could potentially amount to a deprivation of liberty.

To establish whether a person is being deprived of their liberty two important questions must be considered:

  1. is the person subject to continuous supervision and control?
  2. is the person free to leave?

The kind of care that people receive in hospitals or care homes will usually involve a degree of supervision and control and them not being free to leave. This, however, can potentially lead to a person being deprived of their liberty if they have not consented or cannot consent to it.

What are Deprivation of Liberty Safeguards?

The Mental Capacity Act 2005 includes the Deprivation of Liberty Safeguards (DoLS). The DoLS set out a series of checks and procedure which must be followed when it becomes necessary to deprive a person of their liberty, who lacks capacity to consent to their care and treatment, in a hospital or care home setting. It aims to ensure that any care being given which restricts a person’s liberty is both appropriate and in their best interests.

Authorisations

If a hospital or care home plans to deprive a person of their liberty, they must get authorisation. There are two kinds of DoLS authorisation;

  1. an urgent authorisation
  2. a standard authorisation.

An urgent authorisation can be put in place by a care home or a hospital and a standard authorisation must be put in place by a Local Authority. An urgent authorisation can last for up to 14 days and a standard authorisation can last for up to 12 months. A Standard Authorisation can be renewed for subsequent periods of up to 12 months.

The key effects of the authorisation are that every person must be provided with a Relevant Person’s Representative (RPR) as soon as possible and given the right to challenge the deprivation of liberty through the Court of Protection.

The RPR may be a family member, or in cases where the person does not have any close family or friends, an independent advocate must be appointed as RPR. The person and their RPR both have the right to apply to ask the Local Authority to review the authorisation at any time, and a separate right to challenge the authorisation in the Court of Protection by way of a section 21A application.

Section 21 Application

Section 21A Mental Capacity Act 2005 gives the Court of Protection jurisdiction to determine a number of matters which relate to the deprivation of liberty safeguards standard or urgent authorisations. The realm of section 21A, however, is broad and goes further than simply deciding whether or not an authorisation should stay in place.

For the purpose of legal aid, the question is whether an authorisation is in place or not. If an authorisation is in place then the person will be entitled to free legal aid. If you are the family member of the person you may also be entitled to free legal advice and representation. Please get in touch to speak with one of our specialist solicitors.

COP during COVID-19

The Court of Protection team at David Gray Solicitors is fully operational and working from home to help and advise you by telephone, email and video conference – whatever works best for you.

Health and welfare cases are still being heard in the Court of Protection. These have been achieved through telephone hearings to date but can be done via video conferencing where possible. We can still represent you at these hearings.
Please contact us on 0191 232 9547 and visit our web pages to find out more – Court of Protection health and welfare and finance.