Families urged to seek legal advice on deprivation of liberty after judges rule on furthest reaching human rights case heard in the UK for a decade.

Following a landmark judgment in the Supreme Court this week, a member of one of the area's largest mental health legal teams has issued a statement urging people with relatives they consider are being unlawfully deprived of their liberty to seek immediate legal advice.

Natalie Roberts, a specialist lawyer with Wrexham, Llangollen and Oswestry based law firm GHP Legal, made the statement after seven, rather than the usual five, Supreme Court judges ruled that human rights are universal in their character and therefore people with both mental and physical disabilities have the same rights as the rest of the human race and should not be deprived of their liberty.

In what has been described as the most far reaching human rights case heard in the UK for a decade, representatives of two sisters referred to as P and Q had appealed for clarification on whether the living arrangements made for a mentally incapacitated person amount to deprivation of liberty and, if so, whether the deprivation must be authorised by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 and subject to regular independent checks.

"The Supreme Court judgment handed down on 19th March 2014 provides much needed guidance to help professionals determine when restrictions placed on an individual who lacks capacity to make decisions on their residence and care amount to a deprivation of liberty," said Natalie. "That the case was heard by seven judges shows the importance of the decision."

"The test for deprivation of liberty has been made more stringent. The test now is that if a disabled person is obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision and unable to move away without permission even if such an opportunity became available, then they are deprived of their liberty."

In handing down the judgment Lady Justice Hale commented ‘The fact that my living conditions are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage'.

"The consequence of the judgement," says Natalie, "is that we are likely to find that many people who lack capacity and are cared for by the state in care homes or supported living environments are being unlawfully deprived of their liberty without safeguards being put in place. 

"The effect of this is that local authorities will need to consider each of the patients in their care and whether they need to apply for authority to lawfully deprive them of their liberty by authorisation under the deprivation of liberty safeguards or an application to the court of protection.

"The benefit to the individual is that if their liberty is now lawfully deprived their case will be subject to a legal framework and subject to regular review and challenge to ensure it continues to be absolutely necessary and removed when it is no longer necessary. 

"It is essential that there is an independent check when an individual's fundamental freedoms protected by the European convention on human rights are infringed. Individuals who lack capacity are incredibly vulnerable and therefore independent checks on decisions made about them are vital.

"The judgement provides much needed clarity on the law and protection for some of the most vulnerable individuals in society. I would urge anyone with a relative whom they consider is being unlawfully deprived of their liberty to seek the advice of a solicitor as soon as possible."

Natalie Roberts

Natalie Roberts

Partner

A Partner and Part of our Family and Matrimonial and Mental Health team in Wrexham