Contact us to arrange your
FREE initial consultation

Email us Call me back

Written on 9th July 2021 by

Clients whose finances are managed by property and affairs deputies have a wide variety of care needs. Some may live independently and manage their own day to day financial transactions, such as paying for goods at the supermarket, but only require their deputy to deal with more complex transactions and investments. Some may require significant support with all aspects of daily living. Many will fall somewhere between these two ends of the spectrum.

What is deprivation of liberty?

If a client’s disabilities are such that they require constant care and supervision and it would not be safe for them to leave their home unsupervised, they may be legally “deprived of their liberty”. If they have mental capacity to make decisions about their care and residence (something which must be determined by a capacity assessment) and they agree that their care arrangements are in their best interests, they may consent to their care regime. But what happens when a client’s care regime constitutes a deprivation of their liberty and they do not have capacity to consent?

Currently the Mental Capacity Act 2005 allows local authorities to authorise deprivations of liberty in care homes or hospitals for those who are ordinarily resident in that authority’s area, under a system called the Deprivation of Liberty Safeguards (“DoLS”). There is a system in place to ensure that those who may object to their deprivation of liberty are given the opportunity to challenge it in the Court of Protection, but where no objection is raised the court does not typically become involved.

Case Study 1 - David

David is 82 years of age. He lived alone in his own home until he was diagnosed with vascular dementia and became increasingly forgetful and disoriented. His children felt that it was no longer safe for him to continue to live alone at home, but David’s dementia meant that he was unable to properly take his children’s concerns into consideration so as to make an informed decision about where to live. The decision was made by David’s family, in consultation with Adult Social Care, that it would be in his best interests to move into a care home where he could receive 24 hour care. David is not allowed to leave the care home without supervision, for his own safety. This care regime amounts to a deprivation of David’s liberty.

Because David lives in a care home, his deprivation of liberty can be authorised by the local authority under the DoLS. A Best Interests Assessor visits David at least once per year to review his circumstances and find out his views about his residence and care, as well as talking to the care staff and David’s family, before preparing a report stating whether it is in David’s best interests to remain living in the care home. David’s mental capacity to make decisions about his residence and care is also assessed around the same time. Upon reviewing these assessments, the local authority DoLS team will decide whether it is appropriate to authorise David’s deprivation of liberty in the care home for a further period of up to 12 months. While he is deprived of his liberty David will be visited regularly by his Relevant Person’s Representative (who can be a family member or a professional advocate), who will talk to him about his care arrangements and support him to challenge his deprivation of liberty in court if he objects to it.

 

Deprivation of liberty in the community

The DoLS system does not apply to those who are deprived of their liberty in their own homes, which is the case for many of our clients whose lack of capacity is the result of personal injury or clinical negligence, as they may have received a significant compensation payment which can be used to fund their care at home.

For any person who is deprived of their liberty in their own home, or anywhere other than a care home or hospital, at present an application to the Court of Protection is required to authorise that deprivation of liberty. This is the case regardless of whether the person objects to their care regime or is perfectly happy with it. Authorisations are dealt with under what is known as the Re X process, which involves submitting an application form and written supporting evidence to the court.

These applications can often be dealt with by way of an experienced judge considering the paperwork and making a decision without the need for anybody to attend court, but the volume of applications received by the Court of Protection does mean that there can often be a significant delay between submitting an application and a decision being made.

Changes from April 2022 – the Liberty Protection Safeguards

In April 2022 the current regime is set to change. As a result of the Mental Capacity (Amendment) Act 2019, DoLS will be replaced by new legislation governing deprivation of liberty – the Liberty Protection Safeguards (“LPS”).

There are several major differences between the DoLS and LPS regimes. One of the most notable for many of our clients is that under the LPS the Responsible Body (who will usually be the relevant local authority) will be able to authorise deprivations of liberty for people living in the community in the same way as for those in care homes or hospitals, meaning applications to the Court of Protection will no longer be required in those cases.

In addition, authorisations will become portable and variable. At present, an authorisation only applies to the placement in which it is granted and if the person moves to live in a new location it lapses and an entirely new authorisation is required. Under the LPS it will be possible to vary an authorisation if a person moves without another full assessment being undertaken, as long as it is reasonable to do so.

This change should reduce the amount of administrative work involved in simple moves – such as a person moving from one care home, or privately-owned property, to another in circumstances that will not involve a substantial change to their care regime – and therefore hopefully reduce the wait-time for authorisations to be considered, which at present can be considerable. However, it also reduces the level of protection provided to clients by the current requirement for all moves to be fully scrutinised and a new authorisation granted.

It will therefore become even more important for those close to the relevant person to ensure that they bring any concerns they may have about a proposed move to the attention of the local authority, as concerns raised by family and friends are highly likely to be one of the factors taken into consideration when deciding whether it is “reasonable” to vary the current authorisation rather than grant a new one.

Changes for young people

The introduction of the LPS will also bring more young people under its regime. Currently the DoLS system of authorisations can only be used for those aged 18 years and older and any deprivation of liberty for a person aged 16 or 17 years must be authorised by the Court of Protection under the Re X process. The LPS will apply to everybody aged 16 years and older who lacks capacity to consent to their residence and care arrangements.

Case Study 2 - Sarah

Sarah is a 16 year old girl who suffered a hypoxic ischaemic brain injury at birth, resulting in cerebral palsy, epilepsy and learning difficulties. Her mobility and communication skills are significantly impaired and she requires care and support with all activities of daily living. She lives at home with her parents and siblings, who care for her with the assistance of several part-time paid carers. Sarah must be supervised at all times for her own safety and is unable to leave her home without a carer. Her care arrangements, although they are necessary for her safety and Sarah has shown no signs of being unhappy with them, constitute a deprivation of her liberty.

Both because Sarah lives in her own home, rather than a care home or hospital, and because of her age, her deprivation of liberty cannot be authorised by the local authority under DoLS. Sarah’s circumstances will need to be assessed and reports produced regarding both her best interests and her capacity to make decisions about her residence and care, but after this has been done the local authority will not then be able to authorise Sarah’s deprivation of liberty itself, as it did for David in the previous case study. An application will need to be made to the Court of Protection using the Re X process to ask the court to authorise Sarah’s deprivation of liberty at home. While the outcome of this application is awaited, Sarah’s deprivation of liberty will remain unauthorised.

When the LPS comes into force in April 2022, the local authority will be able to authorise Sarah’s deprivation of liberty itself under that new regime, hopefully reducing the length of time she may spend deprived of her liberty without authorisation.

 

How long does an authorisation last?

Finally, and arguably one of the most significant changes from the point of view of property and affairs Deputies and their clients, the LPS will introduce changes to the duration of authorisations. Under the current system, whether that is by way of DoLS standard authorisation or authorisation by the court under the Re X process, an authorisation does not last longer than 12 months. It cannot be renewed and so a new authorisation is required when the previous one expires, including a new application and up-to-date assessments of the person’s best interests and (usually) their mental capacity to make decisions about their residence and care.

Under the LPS it will be possible to renew an authorisation for a further twelve months at the end of the first, as long as the Responsible Body is satisfied that the conditions for authorisation are still met and that it is unlikely that there will be a significant change in the person’s condition during the renewal period. After the second period of twelve months the Responsible Body will be able to renew authorisations for a period of up to three years at a time. The LPS also make it permissible to rely on previous assessments of the person’s mental capacity if it is reasonable to do so. This is significant, particularly when the stage of three-yearly renewals is reached, as it provides for considerably less oversight of a person’s deprivation of liberty than is currently required under DoLS and Re X, where a full assessment must be undertaken at least annually.

The role of a Deputy

It will become even more important after the introduction of the LPS for a property and affairs Deputy to ensure that they carry out their obligation to ensure that the care arrangements being funded from a client’s assets are lawful, including regularly reviewing any deprivation of liberty and promptly bringing any change of circumstances that may result in a need for reassessment or other action by the Responsible Body to their attention.

For more information please contact Lindsay Da Rè at ldare@boyesturner.com.