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Does the person being deprived of their liberty need to be involved in the decision?

A deprivation of liberty often arises when a person in unable to leave the care environment they are living in or lacks the ability to make a choice about what happens to them. It is unlawful to deprive a person of their liberty unless express permission has been given or the Court of Protection has authorised.

In the recent case of EM Mr Justice Mostyn raised concerns about the lack of representation that was made on behalf of EM in the deprivation of liberty proceedings.

On two occasions in short succession, applications were made to the Court of Protection for authorisation to deprive EM of his liberty. The first was to authorise a decision to remove EM from his home to an acute hospital setting because of concerns about his safety and refusal. Sometimes a deprivation of liberty requirement arises outside of office hours and there is an urgent need for decisions to be made. An interim order at an out of hours hearing was granted by the Court of Protection. EM was not represented and did not participate in any other way at the hearing.

About a week later a second application was made to the Court of Protection and was put before Mr Justice Mostyn. Again EM was not represented but the Court was provided with statements and letter from the care team looking after EM as to his wants, wishes and feelings.

Mr Justice Mostyn voiced his concerns about the lack of representation of EM and set out what he believes should be the minimum degree of participation that should be afforded to individuals, when an application is made to deprive them of their human rights.

Mr Justice Mostyn concluded that:-

  • subject to the limited exception (set out below) where an application is made which seeks a deprivation of liberty, the individual must be joined as a party to proceedings and a litigation friend must be appointed to act for him or her.

  • the exception referred to above is where an interim order is very urgently needed and there is just not enough time to secure the individuals' representation before the hearing. But at the hearing, their representation at future hearings must be enabled

So, why is this important for us? If a non urgent application for a deprivation of liberty is made to the Court of Protection without the individual concerned in attendance or being represented failure to secure representation will likely render the order unlawful. This will mean that the individual is being illegally deprived of their liberty, an event which could give rise to a negligence claim again the local authority.

If you know someone who is subject to a deprivation of liberty make sure their paperwork in order and that they attended any hearing in relation to their deprivation.

If you are struggling with deprivation issues please give our care team a call on 01622 843729.

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