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.
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.
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.
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:
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.
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.
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).
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).
Drafting the guidance for the Intensive Care Society on the application of Cheshire West in the intensive care setting.
"It is a really fantastic outfit."
"The team at Browne Jacobson is very knowledgeable, and its advice is second to none. The lawyers are very pragmatic and are able to explain issues in layperson's terms."
Deprivation of Liberty Safeguards was due to transition to Liberty Protection Safeguards in October 2020 but delayed due to the pandemic. While the public consultation has now closed and we’re still unclear of what the final legislation and code will look like, it’s worth noting and keeping a watching brief.
The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019 and will replace the Deprivation of Liberty Safeguards (DoLS) system. The LPS framework aims to deliver improved outcomes for people who are or who need to be deprived of their liberty.
Following on from the first webinar in the Liberty Protection Safeguards (“LPS”) series delivered by Mark Barnett and Chris Stark, the key points below from the webinar are summarised below.
The long-awaited draft Mental Capacity Act Code of Practice, including the Liberty Protection Safeguards (“LPS”), has landed.
The Supreme Court has granted permission to appeal the decision of the Court of Appeal in the case of Jacqueline Maguire v HM Senior Coroner for Blackpool and Fylde in which the Coroner ruled that Article 2 of the European Convention on Human Rights (the right to life) was not engaged.
The already delayed Liberty Protection Safeguards (LPS) implementation date was recently moved from April 2022 to an “unspecified date” in the future.
Our speakers looked at the Mental Health Units (Use of Force) Act and what it means for hospitals in the mental health and acute sector.
Our speakers looked at the legal framework for maternal mental health issues, the obstetrician’s perspective & the psychiatrist’s perspective.
The Liberty Protection Safeguards (LPS) will be used to authorise the proportionate and necessary deprivation of liberty for people aged 16 and above who lack the mental capacity to consent to their care arrangements.
Watch now on-demand our Mental Health and Court of Protection Legal Update webinar, there have been some interesting recent legal developments in this area and topics that were covered during the session.
It is important to bear in mind the legal framework when planning discharge and conveyance plans but practicalities are also key.
Our speakers looked at themes arising from inquests, learning from participating in RCAs, the clinician’s perspective and a difficult case study.
This session discussed the future of interaction between NHS Trusts and local government amidst a drive for better integrated care.
The importance of Trusts developing a written plan so that you are ready to act quickly if anti-Covid or anti-vaccination protesters come on to your site to protest.
We are seeing an unprecedented situation in the Mental Health Act and the Mental Capacity Act, which central Government, the NHS and courts are responding to with speed.
