Deprivation of Liberty

A Deprivation of Liberty (DoL) is a restriction imposed on an adult who lacks the mental capacity to consent to their own health and care arrangements. A best interest decision may be made to deprive someone of their liberty so that they can receive the care and support they need to meet their needs.

The person who is deprived of liberty is under constant supervision and control and does not have permission to leave their place of residence.

A Deprivation of Liberty is prohibited under Article 5 of the 1998 Human Rights Act, unless it is imposed ‘in accordance with a procedure outlined in law’. Under these circumstances, the law is the 2005 Mental Capacity Act.

Deprivation of Liberty Safeguards are in place to ensure that a care home or hospital is restricting a person’s freedoms in accordance with the law. The safeguards are designed to ensure that Deprivations of Liberty are:

• Minimally restrictive, but ensure a person’s safety
• In the best interests of the individual 
• Assessed and reviewed by independent specialists

Certain rights of individuals are also outlined by the safeguards, while allowing them and their representatives, friends and family the right to challenge Deprivation of Liberty decisions that they disagree with.

The safeguards themselves are permissive. They do not, of themselves, create a Deprivation of Liberty. The safeguards mean that for a DoL to be lawful, it must be authorised.

The length of an authorisation for the deprivation of a person’s liberty will vary and is specific to the individual and their particular circumstances. The maximum amount of time that an authorisation can be granted is 12 months. 

When an authorisation comes to an end it can be renewed for a further period of time that does not exceed 12 months. There is no limit to the amount of authorisations that can be granted for a person. 

In urgent situations an urgent authorisation can be granted for a maximum of seven days, which can then be extended if needed.

Deprivation of Liberty decisions can be challenged by:

• A person who will, or may be, deprived of their liberty
• The ‘Relevant Person’s Representative’ (RPR)
• The family of, or a person faced with, a Deprivation of Liberty 
• Independent Mental Capacity Advocates (IMCA)
• Any organisation providing care

If you are subject to a Deprivation of Liberty Safeguards, you must be appointed a Relevant Person’s Representative (RPR) who ensures that your voice is heard in all matters relating to your Deprivation of Liberty.

An IMCA may be appointed to support someone, or their RPR, when a Deprivation of Liberty Safeguards is in place. If it isn’t possible to appoint an RPR, then an IMCA may be arranged instead. 

An Independent Mental Capacity Advocate (IMCA) acts as a safeguard for people who lack capacity to make some important decisions. IMCAs are required to represent the person in decisions that affect them, and are required to make the person’s wishes known and present their views on any decision being made that affects them.

In Court proceedings involving a Deprivation of Liberty it is likely that a Litigation Friend is appointed by the Court to represent the person who is subject to the Deprivation of Liberty. 

This is because the person lacks the mental capacity to be personally involved in the Court of Protection proceedings. A Litigation Friend must ‘direct proceedings’ on behalf of the other person and will often involve instructing the person’s solicitor. 

Acting as a Litigation Friend means continually consulting with the person to find out their wishes and feelings so that decisions can be made in their best interests. 

A Litigation Friend can be a family member, friend, professional advocate (such as an Independent Mental Capacity Advocate or relevant person’s representative) or in the last resort the Official Solicitor.

The Official Solicitor can act as Litigation Friend and represent people in the Court of Protection when they are unable to represent themselves. The Official Solicitor will only be appointed as Litigation Friend if no other suitable person is able to act.