Deprivation of Liberty

Legal Framework Surrounding Deprivation of Liberty

In order to protect the right to liberty, a strong legal framework is in place to govern when and how deprivation of liberty can occur. Several international treaties and regional human rights instruments set out these principles and guidelines.

Some of the key legal instruments include:

• The Universal Declaration of Human Rights (UDHR), Article 9
• The International Covenant on Civil and Political Rights (ICCPR), Article 9
• The European Convention on Human Rights (ECHR), Article 5

While the specific provisions of these instruments may differ slightly, they all share certain common features:

Deprivation of Liberty Examples in Human Rights Law

Throughout the years, several landmark cases relating to deprivation of liberty have shaped the interpretation and understanding of this human rights concept. These cases often highlight the need for clear legal principles and safeguards when it comes to detaining individuals, as well as the importance of adhering to prescribed procedures.

Another example is the case of Ahmet Öcalan v Turkey (2005) at the European Court of Human Rights. The applicant, a Kurdish separatist leader, was arrested and held in solitary confinement on a prison island for several years. The court found that his detention conditions amounted to inhuman and humiliating treatment, and it also ruled that procedural safeguards had not been respected in the early stages of his detention.

These cases demonstrate the significance of deprivation of liberty as a human rights issue and the importance of upholding key legal principles in order to protect the rights of individuals.

Deprivation of Liberty Safeguards: Purpose

The primary purpose of Deprivation of Liberty Safeguards (DoLS) is to ensure that individuals who cannot consent to their care arrangements and are subject to restrictions that may amount to deprivation of liberty are protected under the law. DoLS were introduced in England and Wales under the Mental Capacity Act 2005, specifically covering care in hospitals and care homes.

DoLS set out a range of legal safeguards and processes that must be followed in cases where individuals lack the mental capacity to give informed consent to their care and treatment. These safeguards aim to prevent unjustified or arbitrary restrictions on their freedom, advocate for the least restrictive option, and ensure that any deprivation of liberty is regularly reviewed and authorized by relevant authorities.

The implementation of Deprivation of Liberty Safeguards involves a series of steps, which include:

1. Identifying situations where an individual may be deprived of their liberty;
2. Assessing whether the individual lacks the mental capacity to make decisions about their care and treatment;
3. Determining if the proposed care arrangements are in the person's best interests, necessary for the prevention of harm, and proportionate to the likelihood and severity of the risk;
4. Requesting a formal DoLS authorization from the relevant supervisory body, which involves submitting an application and conducting a series of independent assessments;
5. Implementing any conditions or recommendations made as part of the authorization;
6. Regularly reviewing and updating the care plan and DoLS authorization as needed.

Deprivation of Liberty Safeguards Types

Deprivation of Liberty Safeguards can be categorized based on the type of care setting, the duration of the authorization, and the specific circumstances of each case. Some of the most common types of DoLS include:

1. Standard Authorisation: Usually applies in cases where a care home or hospital has identified a potential deprivation of liberty and requests authorization from the supervisory body. The maximum duration of a standard authorization is one year, with the possibility of renewals.
2. Urgent Authorisation: In situations where the care providers believe there is urgent need to restrict an individual's liberty to prevent harm, they can issue an urgent authorization. This is valid for a maximum of seven days and the care provider must request a standard authorization in parallel.
3. Community DoLS and Other Settings: For individuals who may be deprived of their liberty in other settings, such as supported living arrangements or within their own home, an application to the Court of Protection for a Deprivation of Liberty Order may be required.

Assessing Compliance with Deprivation of Liberty Safeguards

Ensuring compliance with Deprivation of Liberty Safeguards involves regular monitoring and assessment processes. These assessments are designed to guarantee that the safeguards are being applied appropriately and that care providers are adhering to the legal framework.

Independent assessors, also known as Best Interests Assessors or Mental Capacity Assessors, play a crucial role in the DoLS process. They evaluate the specific circumstances of each case, the individual's mental capacity, and whether the proposed restrictions are in their best interests, necessary, and proportionate.

During an assessment, various principles are taken into consideration:

• The individual's mental capacity and ability to make decisions about their care and treatment;
• The person's best interests and preferences;
• Whether the proposed care arrangements are the least restrictive option;
• The necessity of the proposed measures to prevent harm;
• Proportionality, which considers whether limitations on freedom are justified in relation to the severity and likelihood of harm.

Assessors will collect relevant information from care providers, family members, and other involved professionals. They will also consult with the person subject to DoLS wherever possible, taking their views into account. In cases where the person cannot communicate their views effectively, an Independent Mental Capacity Advocate (IMCA) may be appointed to represent their interests.

Finally, supervisory bodies such as local authorities must monitor how care providers implement DoLS authorizations, manage and review authorization renewals, and ensure compliance with any conditions or recommendations. This ensures that the individual's rights are protected, and any deprivation of liberty is legally justified and regularly reviewed.

Deprivation of Liberty Order

A Deprivation of Liberty Order is a legal means by which an individual's liberty may be restricted in settings other than hospitals and care homes. Such an order can be issued by the Court of Protection for instances where DoLS are not applicable, such as in supported living arrangements or an individual's private residences.

Obtaining a Deprivation of Liberty Order

To obtain a Deprivation of Liberty Order, key steps and criteria should be considered. These procedures aim to ensure that the individual's best interests are prioritized, and their rights are protected under the law.

When applying for a Deprivation of Liberty Order, follow these steps:

1. Determine if the person lacks the mental capacity to make decisions about their care and treatment;
2. Identify situations where the proposed care arrangements may result in potential deprivation of liberty, especially outside hospitals and care homes;
3. Consider whether the proposed care arrangements are in the person's best interests, necessary to prevent harm, and proportionate to the likelihood and severity of the risk;
4. Apply to the Court of Protection for a Deprivation of Liberty Order, detailing the specific care arrangements and the justification for the proposed deprivation of liberty;
5. Attend a court hearing, where evidence may be presented, and the court will decide whether the Deprivation of Liberty Order should be granted;
6. If the Deprivation of Liberty Order is granted, implement any conditions or recommendations made by the court and regularly review the person's care plan.

Deprivation of Liberty Order Process

The process of obtaining a Deprivation of Liberty Order involves multiple stages, aimed at ensuring that the person's rights and interests are protected throughout. The court will evaluate the application and make a decision based on the person's well-being and circumstances.

The Deprivation of Liberty Order process includes:

1. Submission of application: The person's care provider or a family member submits an application to the Court of Protection, detailing the proposed care arrangements and the reasons for the deprivation of liberty;
2. Notice of proceedings: The court issues a notice of proceedings, informing relevant parties of the application and their right to respond;
3. Evidence gathering: The court may request additional evidence, such as reports from independent medical professionals, social workers, or mental capacity assessments;
4. Representation: The person may be represented by a litigation friend, who can ensure their interests are protected during the process. The court may also appoint an Independent Mental Capacity Advocate (IMCA) if required;
5. Hearing: The court holds a hearing, during which all parties can present their evidence and arguments. The judge will then make a decision based on the person's best interests, the necessity of stopping harm, and the proportionality of the proposed restrictions;
6. Decision and implementation: If the court grants the Deprivation of Liberty Order, it may set specific conditions or recommendations that must be followed. The care provider or family member is responsible for implementing the order and regularly reviewing the person's care plan to ensure compliance.

Rights and Responsibilities under a Deprivation of Liberty Order

When a Deprivation of Liberty Order is in place, the rights and responsibilities of all involved parties should be carefully considered to ensure that the individual's rights are protected, and the care provider or family member complies with the legal framework.

Under a Deprivation of Liberty Order, the person has the right to:

• Be treated with dignity and respect;
• Have their best interests considered at all times;
• Be represented by a litigation friend or an Independent Mental Capacity Advocate (IMCA);
• Challenge the order or any conditions imposed through a court review;
• Receive regular reviews of their care plan and the deprivation of liberty;
• Be informed of their rights and the reasons for the deprivation of liberty.

Responsibilities of the care provider or family member under a Deprivation of Liberty Order include:

• Complying with any conditions or recommendations set by the court;
• Regularly reviewing the person's care plan and ensuring that the restrictions imposed remain necessary and proportionate;
• Providing the person with information about their rights and the reasons for the Deprivation of Liberty Order;
• Cooperating with any court-requested assessments or reviews;
• Monitoring the person's well-being and notifying the court if any changes in their circumstances may affect the continued appropriateness of the Deprivation of Liberty Order.

By adhering to these rights and responsibilities, all parties involved can ensure that the rights of the person subjected to a Deprivation of Liberty Order are respected, and the care they receive remains consistent with their best interests and legal requirements.