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Deprivation of liberty

Legislation around deprivation of liberty is complicated and has seen a lot of legal changes in recent years. Getting the most comprehensive advice about what it involves and how it can affect you is crucial.

Working across health, social care, education and for NHS bodies, local authorities and independent providers, we specialise in Court of Protection and High Court proceedings that involve the Deprivation of Liberty Safeguards, deprivation of liberty in a community setting and of children in a range of settings. We’re regarded as the country’s leading practice on deprivation of liberty.

Our expertise covers reviewing policies and procedures, dealing with individual cases, and disputes in the Court of Protection or High Court. We also handle the potential liabilities and compensation claims that come about as a result of these cases.

What is deprivation of liberty?

When a person lacks the mental capacity to consent to arrangements about their care, treatment, residence or other issues such as contact arrangements with others, health, hospital professionals and care home providers have the legal capacity to restrict the individual’s freedom where this is in their best interests to protect them from harm and is proportionate in the circumstances. According to the law, a ‘deprivation of liberty’ arises where a person is “under continuous supervision and control”, is “not free to leave” and lacks capacity to make decisions about the treatment or other type of care that is being provided.

For such arrangements to be lawful a legal framework such as the Deprivation of Liberty Safeguards must be in place. For example, someone might be living in a nursing home where doors to different parts of the building are locked, restricting access to potentially hazardous areas such as kitchens and to the exit, for their own safety. They may still be able to go out with family or members of staff and this deprivation of liberty has been properly sanctioned following the correct procedures.

In this case, liberty has been deprived lawfully. It’s when authorisation has not been granted that this could be classed as unlawful, and this is where our services come in. We’re recognised as a leading national provider of training on mental capacity and deprivation of liberty and offer a range of services that cover every aspect of this issue.

Why is deprivation of liberty a hot topic?

Deprivation of liberty has fallen under intense scrutiny in recent years and has become one of the most challenging issues for providers and commissioners of health and social care. This follows a Supreme Court judgment in Cheshire West in March 2014, which resulted in a significant shift in the way the law defines a person whose liberty has been deprived.

Having a legal team in place that understands the intricacies of each deprivation of liberty case is essential for a successful resolution.

How can Browne Jacobson help with deprivation of liberty cases?

We manage and limit your liabilities for unlawful deprivation of liberty, and help to ensure that authorisation is obtained, quickly and cost effectively, for care packages in the community through our fixed fee process for Court of Protection applications.

In addition, we offer a full range of services:

  • Expert team - we have a trained, expert team that can help with reviews of policies and procedures, oversee individual cases and disputes in the Court of Protection, and assist with the potential liabilities and compensation claims that occur from these cases.
  • Speedy response - including emergency and out of hours applications to court where required.
  • Training provider - our team can provide training in mental capacity and deprivation of liberty, including the statutory Best Interests Assessor refresher training. We also provide case studies and other resources in person and online.
  • Guidance and support - we have a team of Mental Capacity Act and Deprivation of Liberty leads based in our offices around the country who offer support through regional forums, along with regular case law update webinars that are free of charge. These webinars are viewed by thousands of health and social care professionals, making them a practical tool for those working in the sector.
  • Strategic advisors - our advisors regularly work with government bodies on development of proposals for reform or the law.
  • NHS Resolution panel members - we work with NHS Resolution and insurers across health and social care on a strategic response to claims for unlawful deprivation of liberty.

Why choose Browne Jacobson?

We’re able to keep up with the fast-moving, complex nature of mental capacity law and deprivation of liberty, working closely with government bodies and dealing with some of the leading reported cases to ensure we have the very latest information about this area. This allows us to look at each case using up-to-the-minute details.

Our dedicated team is on hand to offer specialist advice about deprivation of liberty and the standards that come with this in order to help you achieve the outcome you need. To find out more, contact us at one of our five regional centres and speak to one of our deprivation of liberty experts.

What we do

  • Our expertise - from review of policies and procedures, to dealing with individual cases and disputes in the Court of Protection, and with the potential liabilities and compensation claims arising from these.
  • Leading national provider of training - on mental capacity and deprivation of liberty, including the statutory Best Interests Assessor refresher training, as well as providing case studies and other resources in person and online.
  • Guidance and support - through our regional forums for MCA / DOL leads in our offices around the country and delivery of regular case law update webinars, free of charge, viewed by thousands of health and social care professionals.
  • Strategic advisors - working with government bodies on development of proposals for reform or the law.
  • NHS Resolution panel members - we work with NHS Resolution and insurers across health and social care on a strategic response to claims for unlawful deprivation of liberty.

Featured experience

Court of Protection

Complex Court of Protection proceedings including those relating to deprivations of liberty in children, including Wigan BC v Y (Refusal to Authorise Deprivation of Liberty) [2021] EWHC 1982 (Fam) (14 July 2021) which concerned the deprivation of liberty of a 12-year-old child with mental health issues.

Manchester University NHS Foundation Trust

Advised Manchester University NHS Foundation Trust in relation to a medical treatment dispute concerning the withdrawal of COVID-19 ECMO treatment and ventilation. KM, Re [2021] EWCOP 42 (10 May 2021).

Nottingham University Hospitals NHS Trust

Advised on the end-of-life treatment of a child in the case of Z, Re (Medical Treatment: Invasive Ventilation) [2021] EWHC 2613 (Fam) (24 September 2021).

Intensive Care Society

Drafting the guidance for the Intensive Care Society on the application of Cheshire West in the intensive care setting.

Testimonials

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