People who lack mental capacity (protected parties) are often provided with assisted living facilities and various forms of supervised accommodation by local authorities. However the act of placing a protected party in such an environment does involve depriving that person of their liberty and this cannot be done without authorisation from the Court of Protection.
Deprivation of liberty arrangements
Every individual has the right to respect for private and family life under article 8 of the European Convention on Human Rights 1998 and the state can only legally interfere with that right under limited circumstances, such as to provide that individual with protection and security. Even then, that person should only be deprived of their liberty for as long as is strictly necessary and in proportion to their needs and circumstances. There is a strong emphasis generally on promoting that person’s independence.
With mental health awareness increasing, adult social care teams at local authorities are implementing far more tailored and calculated care plans for protected parties, with particular regard paid to medical advice. However, the Court’s permission will always be needed where care plans and the terms and parameters of local authority accommodation involve any restrictions on that person’s freedom to live as they choose.
Recent case law
A good example of this recently was the decision in AB (deprivation of liberty) [2020] EWCOP 39, which involved a protected party living in a supported living facility. She was able to contact the on-site support whenever she chose, but was able to live as she pleased within her accommodation. However, on each occasion that she left the complex this would be noted by the supervisory staff and the terms of her residence provided that she was required always to return to the property each evening, failing which the on-site staff would notify the Police. The on-site staff would also be free to enter when they chose to inspect the property for cleaning and repairs.
The Court decided in this instance that the protected party was subject to “control” by the local authority because:
- They could enter her accommodation at any time;
- They would report her missing if she did not come home each night; and
- Note her departures from the premises.
This went beyond mere supervision and support, and her ability to return when she chose to did not make any difference.
This is not only a benchmark for local authorities but also for relatives who are concerned about what is in a protected party’s best interests. If such arrangements are considered to be too intrusive, impractical or if they go beyond what is necessary to protect someone’s welfare, it is possible to challenge this in the Court of Protection. Similarly, if you consider that local authority arrangements are not going far enough, and that someone ought to be deprived of their liberty in the interests of their own welfare, you can make an application to Court for alternate options to be considered by a Judge.
Residence orders which necessitate any deprivation of liberty are routinely reviewed by the Court of Protection and it is typically the case that a deprivation of liberty order will be time limited to enable reconsideration at a later hearing. At all times, the Court’s decision must focus on what is considered to be in the best interests of the individual protected party and because every individual’s needs and circumstances are different, there is considerable reliance on expert opinion in many Court of Protection cases concerning issues of health and welfare.
How can Nelsons help?
If you have any questions regarding the subjects discussed in this article, please contact a member of our expert Dispute Resolution team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.