Understanding Your Rights and Legal Safeguards

The concept of personal freedom is a fundamental human right. However, there are circumstances where restricting an individual’s liberty is necessary to protect them from harm. This delicate balance between safeguarding vulnerable individuals and respecting personal freedoms creates complex legal and ethical challenges.

The term “deprivation of liberty” often arises in legal and healthcare discussions, particularly relating to vulnerable populations such as those with dementia, severe learning disabilities, or significant mental health conditions. As society grapples with these ethical dilemmas, navigating the nuances of what constitutes lawful deprivation becomes paramount for families and carers.

We explore the legal framework surrounding these decisions, including the Deprivation of Liberty Safeguards (DoLS), and explain the implications for individuals affected by them. By shedding light on this often-misunderstood topic, we aim to empower you with knowledge, ensuring the rights and well-being of those facing this reality remain at the forefront.

Defining Deprivation of Liberty

In legal terms, a deprivation of liberty occurs when an individual is under continuous supervision and control and is not free to leave. This definition stems from the “Cheshire West” Supreme Court judgment, which established an “acid test” to determine whether a person is being deprived of their liberty.

It is important to understand that this definition applies regardless of whether the person objects to their placement or whether the care is benevolent and necessary. The focus is purely on the nature of the restrictions placed upon them. Common settings where this occurs include care homes, hospitals, and supported living environments, albeit those arrangements (supported living)  would need the courts authorisation

If a person lacks the mental capacity to consent to these arrangements, the deprivation of liberty must be authorised by law. This ensures that the restrictions are in the person’s best interests, necessary to prevent harm, and proportionate to the risk of that harm.

What are the Deprivation of Liberty Safeguards (DoLS)?

To ensure that no one is deprived of their liberty without proper legal process, the Mental Capacity Act 2005 introduced the Deprivation of Liberty Safeguards (DoLS). But exactly what is the deprivation of liberty safeguards framework designed to achieve?

The primary purpose of DoLS is to prevent arbitrary detention. It provides a legal procedure that hospitals and care homes must follow if they believe it is in a resident’s best interests to be deprived of their liberty for their own care or treatment.

The safeguards ensure that:

• The person is provided with a representative.
• The person has the right to challenge the deprivation of liberty in the Court of Protection.
• The arrangement is reviewed regularly to ensure it is still necessary.

It is a protective measure that ensures the care provided is the least restrictive option available.

The Intersection of DoLS and the Mental Health Act

Navigating the overlap between what is a deprivation of liberty, and detention in hospital via the provisions of the Mental Health Act and the Mental Capacity Act can be confusing. While both legal frameworks enable  individuals to be detained (as per the MHA) or deprived of their liberty (Dols/ MCA)  they apply in different circumstances.

The Mental Health Act 1983 is used when it is necessary for a person to be detained in a hospital setting specifically for the assessment and or treatment of a mental disorder. The MHA also extends to those in the community when subject to a Community Treatment Order (CTO) and or Guardianship. In contrast, DoLS (under the Mental Capacity Act) is typically used for individuals who lack the capacity to consent to their care arrangements in a hospital setting and or care home, which often related to those individuals having conditions such as dementia, brain related injuries, and or those with sever learning disabilities. 

Determining which legal framework applies is a complex area of law requiring specialist expertise. There is sometimes an overlap between these two areas of law, and which one applies is key when determining the best advice and outcome for that individual.

Challenging DoLS and Protecting Rights

A crucial safeguard is the right to appeal. If a person is subject to a DoLS authorisation, they or their Relevant Person’s Representative (RPR) have the statutory right to challenge the authorisation in the Court of Protection. This is known as a Section 21A MCA challenge.

Challenging DoLS ensures the vulnerable person’s voice is heard. The court must start by addressing whether the person lacks the capacity to make decisions as to their residence and care and support arrangements, whether the deprivation is  in their best interests, and whether the care could be provided in a lesser restrictive way (such as at home with a care package). These are the routine challenges we undertake before the court of protection at CJCH Solicitors.

It is vital to note that when challenging a DoLS authorisation under Section 21A, the detained person is entitled to non-means-tested Legal Aid. This ensures that financial constraints do not prevent access to justice and legal scrutiny of the detention.

Under the Mental Health Act the individual has rights to appeal their detention to the Mental Health Review Tribunal for Wales, or First Tier Tribunal in England. Pending what provision of the MHA the person is subject to (i.e section 2 and or 3 of the mental health act), will factor in what advice is provided to that individual.

Expert Legal Representation in South Wales

When dealing with the complexities of the Court of Protection and mental health law, having experienced solicitors by your side is invaluable.

CJCH Solicitors Swansea and our wider team across Wales specialise in this intricate field. Our Mental Health Law department, led by Director Amy Robert-Rees, has extensive experience representing clients detained under the Mental Health Act and those subject to DoLS authorisations.

Amy Robert-Rees acts regularly on behalf of the Official Solicitor, professional representatives, and families. Recognised by the Law Society as an Accredited Legal Representative and as a fluent Welsh speaker, she and her team are dedicated to fighting for the rights of adults with mental health diagnoses and ensuring their voice is at the center of these cases at all times. The team has developed case law in this area of law and is a highly commended team as being ranked in chambers and partners.

With the recent opening of our new office at 3 Walter Road, Swansea, we have expanded our ability to provide local, face-to-face support to families in the region. Whether you require specialist lawyers with a niche knowledge in Deprivation of Liberty (DoLS), or for a representation at a tribunal hearing or general advice if detained under the Mental Health Act and or s117 queries, our team combines technical excellence with a compassionate approach.

Frequently Asked Questions

What legal services in Swansea specialise in deprivation of liberty cases?

CJCH Solicitors Swansea specialises in deprivation of liberty cases. Our dedicated Mental Health Law and Court of Protection department provides expert advice and representation. We have recently expanded our presence with a new office at 3 Walter Road, Swansea, allowing us to support clients locally with the same level of expertise found across our other branches.

Can I book a consultation with a local legal expert on deprivation of liberty safeguards?

Yes, CJCH Solicitors is based in Swansea with 6 offices across Wales, including Cardiff, Barry, Bridgend, and Blackwood. You can book a consultation with our experts to discuss your specific situation. We understand the urgency of these matters and aim to provide timely, accessible advice.

How can I challenge a Deprivation of Liberty Safeguards (DoLS) decision in Swansea?

To challenge a DoLS decision, an application must be made to the Court of Protection under Section 21A of the Mental Capacity Act 2005. This process asks the court to determine if the deprivation of liberty is lawful and in the person’s best interests. Our specialist solicitors can guide you through drafting the application and represent the detained person during the proceedings.

What is the process for appealing a DoLS decision through legal aid?

If you are the person subject to the DoLS authorisation (or their RPR taking proceedings on their behalf), you are generally entitled to non-means-tested Legal Aid for Section 21A challenges. This means the government covers the cost of legal representation regardless of your financial situation. Our team can assist in securing this funding and managing the appeal process from start to finish.

Securing the Right Support

The deprivation of liberty is a significant intervention in a person’s life, and the law requires it to be carefully scrutinised. Whether you are a family member concerned about a relative’s care arrangements or a representative seeking to uphold a client’s rights, understanding the legal landscape is the first step toward ensuring justice.

Having the right legal advice and support from the very beginning can make a significant difference. At CJCH Solicitors, our experienced Court of Protection and Mental Health Law team helps families and individuals across Cardiff, Barry, Bridgend, Blackwood, Caerphilly and Swansea.

With our 4.8-star Trustpilot rating and decades of experience, we combine technical legal excellence with compassionate client care. If you require assistance regarding the Mental Health Act or Deprivation of Liberty Safeguards, please contact our administrative team at admin@cjch.co.uk or call 0333 231 6405.