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Court of Protection and Deprivation of Liberty

Our expert Court of Protection solicitors and Advocates advise on issues relating to mental capacity and best interests meetings, call us on 02073530011 or enquire online. We are a national law firm offering services across the UK from London, The South East, Manchester to Truro, and are able to provide legal aid funding for your case, subject to eligibility which is means tested or tailored privately funded advice.

The Court of Protection makes decisions and appoints deputies to act on behalf of people who are unable to make decisions about their personal health, finance or welfare. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.

If you know or care for someone who no longer has the mental capacity to make decisions for themselves, we are able to help guide you through the complex process of applying to the court of protection It is a fact that, as we all are living longer, there is more chance we will suffer from conditions such as mental health capacity , Alzheimer’s or dementia

Lasting Power of Attorney

A lasting power of attorney is a legal document that lets you (the ‘donor’) appoint people (known as ‘attorneys’) to make decisions on your behalf. It can used if you became unable to make your own decisions.

A lasting power of attorney can apply to;
  • Health and welfare
  • Property and financial affairs
Every adult is entitled to make their own decisions, no matter if they are unwise or they are perceived by others to be, this is because the law says that everyone is presumed to have the requisite mental capacity to make their own decisions unless it is proven otherwise.

However, difficulties in making a rational reasoned decision can arise in a number of situations such as a mental health problem as a result of a medical condition, a learning disability, or brain injury, for example.

If a decision needs to be made and a person is assessed to lack mental capacity to make that decision themselves, then the provisions and principles of the Mental Capacity Act 2005 must be followed, to ensure that the decision that is made is in the person’s best interests.

There are a number of decisions that may need to be taken in a person’s best interests, such as in relation to Care Plans which are often major issues in Court of Protection cases and pressure and skilled negotiations on best interests are required

A deprivation of a person’s liberty (DOL) can exist when;

  • Urgent and complex medical treatment decisions, such as decisions about medical treatment including whether to withdraw life sustaining treatment
  • In relation to a person’s care
  • In relation to where a person should live
  • In respect of who a person is able to see and have contact with
  • In relation to whether a person is able to consent to and engage in sexual relations
Local authorities and NHS Trusts are often involved in the decision making process and it is those bodies who must ensure that the necessary mental capacity and best interests assessments are undertaken and the correct processes followed before any decision is made or action taken. This involves holding a best interests meeting with the people involved in the individuals life and care.

Disputes sometimes arise between family members and social care or health professionals as to whether a person has or lacks mental capacity, as carers, family members and others may disagree with a capacity assessment or best interests decision. If this happens, an application may need to be made to the Court of Protection to resolve the dispute.

Defining someone’s best interests is always difficult and disagreements between family members and professionals are often complex, but our lawyers are trained in dispute resolution to explore solutions throughout the process. The Court of Protection is a specialist court safeguarding the rights of those who have been assessed to lack capacity to make a particular decision themselves. The court will consider all of the evidence put before it by the parties and this may include expert independent evidence and then make a decision based on what is in the person’s best interests in the event of a dispute or disagreement, having regard to several factors.

Our specialist team seek to resolve issues before an application to court becomes necessary. It is therefore crucial that legal advice and representation is obtained as soon as possible.

There will, however, be circumstances where court proceedings are necessary, and we provide support and specialist representation in the proceedings.

COP and Deprivation of liberty

Care Plans are often major issues in Court of Protection cases and pressure and skilled negotiations on best interests are required.

The Human Rights Act applies to the issue of Liberty. Article 5 of the European Convention on Human Rights states that everyone has the right to liberty.

No one can be deprived of their liberty unless in accordance with the law. Liberty or freedom can only be taken away from them in certain specific circumstances. If someone is deprived of their liberty without lawful authorisation, this will amount to a breach of their Article 5 right. Someone may have physical or mental disabilities or be in the care from the NHS local authority. It may be in the person’s best interests for them to be deprived of their liberty in order to keep them safe. In these circumstances, the relevant public body must have authorisation to deprive the person of their liberty. It is unlawful for a public body such as a local authority or the NHS to deprive a person of their liberty, without lawful authorisation.

A person will only be lawfully deprived of their liberty if this is in their best interests. The person may be vulnerable due to their disabilities, and deprivation of their liberty may be necessary to prevent harm or risk to the person. Whether the care arrangements amount to a deprivation of liberty should be assessed and the arrangements must be the least restrictive way of meeting the person’s needs.

A deprivation of liberty can exist in a hospital, care home, supported accommodation placement and even at home.

A deprivation of liberty may exist in circumstances where:

The person lacks mental capacity to consent to their care arrangements. If the person is in a hospital or care home, the deprivation of liberty safeguards apply. The person is not free to leave their home - a person may be subject to physical restrictions such as locked doors, or would be prevented from leaving/brought back if they decided to leave The person is under continuous supervision and control - for example, the person needs to be continually supervised as there would be a risk to their safety if left alone .The care is “imputable” to the state which means that the care is arranged, funded or provided by a public body such as a local authority or the NHS. In any other residential setting, including at home, the relevant public body must make an application to the Court of Protection to obtain authorisation from the court.

If in a hospital or care home, a person’s liberty can only be taken away if the deprivation of liberty safeguards are used.

These safeguards are contained in the Mental Capacity Act 2005 and this involves the undertaking of several assessments and the grant of either an urgent or standard authorisation. The actual care arrangements may amount to a deprivation of a person’s liberty, the deprivation of liberty must be authorised - either by use of the deprivation of liberty safeguards or application to the Court of Protection, depending on where the care is being received.

DOL or deprivation of liberty is not the same as being detained under the Mental Health Act for mental health assessment and/or treatment. The Mental Health Act is used to detain people for this purpose, the Mental Capacity Act applies where a person is being deprived of their liberty in order to keep them safe.

If a person is being detained under the Mental Health Act, authorisation for deprivation of their liberty cannot be obtained at the same time. However, if someone is conditionally discharged from the detention, the arrangements can amount to a deprivation of liberty under the Mental Capacity Act.

The Mental Capacity Act Code

The act also has a code or practice for Deputies and attorneys. Failure to follow it can be used as evidence against that person. The aim of the Code is to help those involved with incapacitated adults to better carry out their role. They must always be assessing whether an action they are about to take or a decision they are to make is in the client’s best interest.

The 2005 Act makes it clear that capacity is to be considered on a decision by decision basis. Before the introduction of the Mental Capacity Act, the assessment of capacity under the Mental Health Act 1983 was an all or nothing test. The Act recognises that each case is individual and may have fluctuating capacity. We constantly consider the mental capacity of each person we act for in relation to the decision being made, and if necessary instruct a medical practitioner to carry out a formal assessment.

The Mental Capacity Act, and the more recent Deprivation of Liberty Safeguards are still very new law and this area of practice is developing rapidly with new cases being reported which effect how the law is applied. We work at the cutting edge of these developments.

If an urgent authorisation is granted when a person is in a care home or hospital, due to urgent circumstances, authorisation can only be granted for a maximum of 7 days. After this, an application must be made for a standard authorisation. The length of a standard authorisation depends on the person’s individual circumstances and how often these circumstances and the care might change. The assessor will make a recommendation based on the person’s best interests.

If standard authorisation is granted or if, in another setting, authorisation is granted by the Court of Protection, the authorisation can only be granted for a maximum of 12 months.

The hospital, care home or relevant public body can make an application for a new authorisation to begin as soon as the existing authorisation has expired.

If the court authorises the deprivation of liberty, this must be reviewed again by the court after a maximum time of 12 months.

If the deprivation of liberty safeguards are used, when an urgent or standard authorisation is granted, someone will be appointed as a Relevant Persons Representative (RPR). This is someone who can support the person being deprived of their liberty, by requesting a review or making an application to the Court of Protection to appeal the authorisation in place, if this becomes necessary. This is usually a family member. It is the responsibility of the representative to request a review of and appeal the authorisation on behalf of the person. It is important that the representative has legal advice.

If authorisation has been granted by the court, as opposed to via the deprivation of liberty safeguards, and the person is objecting to the care arrangements or to where they are residing, for example, then application back to the Court of Protection for review of the authorisation may be required.

Deprivation of liberty is an ever changing and complex area of law and it is important that specialist legal advice is sought. We are a national firm offering services across the UK and are able to offer legal aid funding subject to eligibility. For further information, please contact us on 0207 3530011 or enquire online. There are sometimes situations where disputes arise relating to powers of attorney or the Court of Protection, which can lead to Court hearings:

You may have recently been served with a notice that an attorney for a loved one is trying to register the enduring power of attorney (EPA) or lasting powers of attorney (LPA) with the Court. You may wish to dispute this as you consider that power is being granted to the wrong person or the patient did not have the necessary capacity to make the power of attorney in the first place.

You might be aware that an attorney is already acting under a registered EPA or LPA but you have doubts as to the actions they are taking. You may also be an Attorney who is being challenged by other family members. You may be unhappy with the proposed appointment of a Deputy or that a Deputy is not acting in the person’s best interests.

Alternatively, you might be a Deputy who is facing a challenge to your conduct.

Contact the Experts

It is important that you seek specialist legal advice from our team at Edward Hayes Lawyers before responding to an objection. The general rule with costs in the Court of Protection is that the objector’s costs will be paid from the estate of the patient. However, this only applies if you act reasonably at all times, and if the Court thinks otherwise, you could face having to pay yours, and your opponent’s costs recent case law is developing and there are clear risks.

There are sometimes situations where disputes arise relating to powers of attorney or the Court of Protection, The Deprivation of liberty is an ever changing and complex area of law and it is important that specialist legal advice is sought. We are a national firm offering services across the UK and are able to offer legal aid funding subject to eligibility.

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Head Office: Central London
Tel: 020 7353 0011
Manchester
Tel: 0161 341 0503
Chichester
Tel: 01243 781431
Worthing
Tel: 01903 215999
Horsham/Gatwick
Tel: 01403 878024
Havant/Portsmouth
Tel: 02392 479872
Littlehampton
Tel: 01903 759024
East Wittering
Tel: 01243 672124
Isle of Wight
Tel: 01983 533006
Basingstoke
Tel: 01243 781431
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Fax: 020 7427 7391
Email: info@edwardhayes.co.uk

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