When is an Individual being Deprived of their Liberty – Guidance for Legal Professional’s seeking an Order from Court of Protection to Sell a Property 

What is a Deprivation of Liberty Safeguard?

Usually, a Deprivation of Liberty Safeguard (DoLS) application would be made for an individual who has been assessed as, or assumed not to have the mental capacity to understand their health and social care needs, who may be at risk from harm should they leave the current place they are staying (whether that be a hospital, care home or their own home). A DoLS can be requested for individuals staying in a care home on either a temporary or permanent basis. However, a DoLS can also be applied for in a community setting, where there is evidenced risk such as the individual being known to wander, and the individual lacks mental capacity around these risks. Currently the Local Authority can authorise who can be deprived of their liberty in a care home or hospital, whereas in other settings it is the Court of Protection who authorise whether a person might be deprived of their liberty. Only those people who have been assessed as lacking mental capacity may be deprived of their liberty under a DoLS

Why is the Court of Protection reluctant to grant an Order to sell a property when the individual does not have a DoLS in place?

From time to time, we are approached by Solicitors asking whether we can support as there is no DoLS in place for an individual ahead of a Property and Financial Deputyship Order application, to the Court of Protection, making it difficult to obtain an Order from the Court of Protection to sell a property in the absence of a DoLS. The Court of Protection are reluctant to grant an Order to sell an individual’s property / home without a DoLS in place as it could be assumed that the individual in question actually does have mental capacity to decide where and how their care needs should be met, and consequently the individual might later decide that they would rather be living in their own home as is the right of any capacious individual, even if others consider their decision to be ‘unwise’.

When should there be a DoLS in place for individuals residing in a care home?

Of course, not every resident living in care home is being deprived of their liberty. In fact, a vast number of residents have no difficulties with their cognition or memory and have made an informed decision to willingly enter into a care home either because their needs were in excess of what could safely be met with a care package at home, or because the social element of residing in a care home appeals to them. However, unfortunately there still remains much inconsistency and inaccuracy between staff working in care homes as to when an individual without mental capacity might be being deprived of their liberty. I still meet care home managers on a regular basis who respond when questioned regarding a DoLS being in place “But they are very happy here, and they make no attempts to leave”. My response is “So what would you do if your resident asked you to call them a taxi right now, and that they were leaving. Would you call them one? Or if a resident collected a few things from their room and made a beeline to the front door to exit, would you permit them to go? Would you lock the front door as you know the resident would be at risk of harm due to their impaired cognition / memory should they leave the care home entirely independently?”. The care home resident does not need to be attempting to or asking to leave for legal authority to deprive them of their liberty by way of a DoLs being sought. Furthermore, without a DoLS in place the resident is essentially being deprived of their liberty illegally. If the response from the care home is that the resident would not be free to leave if they requested to go, or made attempts to leave, irrespective of whether they can practically call their own taxi or mobilise out of the front door, then they are being deprived of their liberty, and legally those being deprived of their liberty without the mental capacity to make this decision should have a DoLS in place. 

What does the Law say of when an individual might be being deprived of their Liberty?

What is the Acid Test?

The acid test states that a person is deprived of their liberty when:

  • They are subject to continuous supervision and control and
  • Are not free to leave

‘When answering both questions staff should consider if they exercise complete and effective control over a person’s care and movements and decisions about their care. A person does not have to be asking to, or attempting to leave to be deemed not free to leave. Care staff should ask what they would do IF the person tried or asked to leave. If the answer is that they would stop the person then the person is NOT FREE to leave within the meaning of the ACID TEST [Ref.P v Cheshire West & Chester Council; P & Q v Surrey County Council [2014] UKSC 19]’

So, what can I do as a Solicitor if I believe the individual is being deprived of their Liberty yet there is no DoLs in place?

I find the simple and most effective way of ensuring that care homes make a DoLS application when an individual lacks mental capacity into their care needs and accommodation and the resident is being deprived of their liberty, is to politely remind them of the Cheshire West case and the Acid Test. I haven’t met a care home yet who further resists making a DoLS application when the law is pointed out to them. And finally, let’s not forget what the very purpose of a DoLS to be?! To ensure that individuals human rights are respected, including where one lives, the care one receives, and the informed choices and risk one is entitled to take, as long as we understand and are able weigh up the consequences of the choices that we are making. These are our human rights as autonomous, self-determining, capacious human beings, regardless of age or disability.