There is a legal right not to be deprived of your liberty, namely the ability to move around as you wish. However some people may have mental or physical disabilities and as part of their care package it may be necessary to be prevented from leaving to keep them safe.
The Local Authority or NHS need lawful authorisation to deprive someone of their liberty. This is on the basis of the person’s best interests. This can exist in a hospital, a care home, or even at home.
A deprivation of liberty may exist where:
- The person lacks mental capacity to consent to their care arrangements;
- The care is imputable to the state – This means that the care is arranged, funded or provided by a public body such as a local authority or the NHS;
- The person is under continuous supervision and control – for example, the person needs to be continually supervised as there would be a risk to their safety if left alone;
- The person is not free to leave – a person may be subject to physical restrictions such as locked doors, or would be prevented from leaving/brought back if they decided to leave;
- If the person is in a hospital or care home, the deprivation of liberty safeguards apply and assessments are needed before authorisation is granted.
- In any other case, including at home, the relevant public body must make an application to the Court of Protection to obtain authorisation from the court.
The authorisation can be reviewed by a person acting on behalf of the person or an application made to the Court of Protection. The order normally lasts a year but can be reviewed. Please contact us for further information.
This is different from being detained under the Mental Health Act.