If a person is suspected to be deprived of their liberty in a care home or hospital, the care home or hospital must complete the following form to request an assessment:
What is deprivation of liberty?
You are deprived of your liberty, in the health and social care context, when:
- You are unable to make a decision about where you live and the care you need, so a best interests decision about residence and care is made for you.
- In that placement, you are under continuous supervision and control and you are not free to leave (in the sense of going to live somewhere else). Cheshire West, Supreme Court, 2014.
- The arrangements are in some way imputable to the state (this means that the care or residence arrangements are the responsibility of a public body such as the NHS or a local authority, or they are aware of it).
The right not to be deprived of liberty without due process comes from the European Convention on Human Rights, which is incorporated into domestic law by the Human Rights Act 1998. This says no-one’s liberty can be taken away without following a due legal process, and that they must have a legal mechanism available to challenge any deprivation of their liberty. You can find out more on the Equality and Human Rights Commission website.
The Department of Health has written an easy read guide to Deprivation of Liberty which you can read here.
What are deprivation of liberty safeguards?
Deprivation of liberty safeguards are put in place to protect a person's human rights. They make sure that professionals follow a process, set out in law, to make sure that any restrictions on your liberty are in your best interests. These safeguards include:
- a Relevant Person's Representative - this is a family member, friend or paid advocate who will visit you regularly and check that you are happy with where you live and the support you receive
- a right to challenge the deprivation of your liberty in the Court of Protection
These safeguards or supports make sure everything is clear and as fair as possible.
Deprivation of liberty safeguards only apply in care homes and hospitals, and only for people over 18 years. For any other setting, for example in supported living, or in a family home, or anyone under 18, any deprivation of liberty can only be authorised by the court, to meet the person’s rights for due process and scrutiny.
Who is involved in a deprivation of liberty safeguards process?
If the person is in a care home or hospital, then the care home or hospital need to contact the local authority who funds that person’s care or oversees the care home.
If the person who meets the criteria above, lives in their own home, tenancy, or supported living, then a public body such as the local authority, will need to apply to the Court of Protection for an authorisation.
In care homes or hospitals - an assessment process should be undertaken to check that the care arrangements in place are required and proportionate in keeping the person ‘safe’, and are in the person’s ‘best interests’. A person is then provided with ‘safeguards’ once the process has been completed. These include:
- a relevant person’s representative
- a right to challenge or ‘appeal’ the arrangements in the ‘Court of Protection’
- a right to request support from a paid advocate
- a right to request a review of the authorisation
The process to authorise a deprivation of liberty
A care home or hospital is known as the ‘managing authority’. They are required to identify if someone meets the criteria above, and let the local authority (supervisory body) know.
Once a local authority receives a referral they need to arrange for:
- A mental health assessor to complete an assessment to check whether the person has a mental disorder defined in the Mental Health Act, and make sure that the person is not already detained using the Mental Health Act instead of using the Mental Capacity Act and Deprivation of Liberty Safeguards. A mental health assessor may be a GP or psychiatrist who has been given the relevant training to complete these assessments.
- A best interests assessor to look at whether the person lacks capacity to make a decision about the arrangements in place in the care home or hospital. A best interests assessor is usually a social worker, occupational therapist or nurse who has received the relevant training to complete the assessments.
The best interests assessor will also check:
- Whether the arrangements are in the person’s best interests, whether the arrangements are a ‘proportionate’ response to the risks if the person was not supported this way.
- Whether there is someone who holds lasting power of attorney for health and welfare. Check whether they agree to the deprivation of liberty (called the ‘no refusals assessment).
- Whether any ‘less restrictive’ options have been explored. This is to ensure restrictions do not negatively impact on a person’s human rights. Learn more about human rights on the Equality and Human Rights Commission website.
- What a person’s wishes and feelings are, about the arrangements in place. They will also speak to those involved in a person’s care and who are important to the person, to gain their views on the impact of the arrangements on the person.
The best interests assessor will speak to the person to identify a relevant person's representative. If the person is unable to recommend someone, the best interests assessor can make that recommendation on their behalf. This could be a family member, relative or a paid advocate.
Relevant person's representative
In general, a relevant person's representative is a friend or family member who will ensure that the rights of a person are protected during a deprivation of liberty safeguards process. Where no friend or family member is willing or eligible, a paid representative will be appointed from an advocacy agency.
There are rules guiding who can be a relevant person's representative. You must be:
- 18 years of age or over
- able to keep in contact with the relevant person
- willing to be appointed
You must not be:
- financially interested in the hospital or care home where the relevant person is being deprived of their liberty, or be a relative of a person who has a financial interest
- employed by, or providing services to, the care home where the person lives
- employed by the hospital where the person lives in a role related to their treatment or care
- employed to work in the local authority in a role that related to the person’s case
You must be able to:
- act in a person’s ‘best interests’ at all times
- request a review of the Deprivation of Liberty Safeguards authorisation when required
- support the person to take an objection to the Court of Protection
If you think that you may not be eligible to act as the relevant person's representative for any reason, you must contact the supervisory body immediately.
What should happen if a person is not happy with the support they receive or where they live, when they have a deprivation of liberty safeguards authorisation in place?
The Court of Protection has looked at cases where a person is believed to be objecting (not happy with their care or where they live) to the arrangements in place, and given the following advice to determine whether someone is objecting.
A person may verbally or physically (through their behaviour) express an objection to the care they receive or the place they live. A case in the Court of Protection recommended considering the following, if you are a relevant person's representative and want to determine whether a person is objecting:
- whether there are possible reasons for the person’s behaviour
- whether the person is being medicated for depression or being sedated
- whether the person actively tries to leave the care home
- whether the person takes preparatory steps to leave, for example, packing bags
- the person’s demeanour and relationship with staff
- whether there are any records of challenging behaviour and the triggers for such behaviour
- whether the person’s behaviour is a response to particular aspects of the care arrangements or to the entirety of those arrangements
The significance of this is that such an objection ought to lead to a deprivation of liberty safeguards authorisation being challenged on the person's behalf in the Court of Protection.
If you are a relevant person’s representative and unsure whether the person you support is objecting, or not sure how to action the objection, please contact the deprivation of liberty safeguards team. contact us.
Deprivation of liberty safeguards forms
Requesting an assessment
Once the referral has been accepted
Once the deprivation of liberty safeguards team have accepted a referral they will arrange for the following forms to be completed:
- form 3: mental capacity / best interests assessment (a best interests assessor uses this form)
- form 4: mental disorder / eligibility / mental capacity assessment (a mental health assessor uses this form)
- form 5: authorisation granted (when the deprivation of liberty safeguards process is complete, this form is completed)
- form 6: authorisation not granted (when the deprivation of liberty safeguards process is stopped or not granted)
If any changes are required
If any changes are required to a deprivation of liberty safeguards authorisation that is already in place, the care home or hospital can complete one of the following forms:
- form 7: suspension of a standard authorisation (used by a care home if a person is detained under the Mental Health Act)
- form 8: termination of a representative (change of relevant person’s representative)
- form 9: standard authorisation ceased (completed if the authorisation is ended)
- form 10: review request (if a person’s needs or arrangements have changed or review is needed)
Who can I speak to for advice or more information?
For assistance please contact the deprivation of liberty safeguards team at North Yorkshire Council.