Q&A - We believe our mentally disabled son is being deprived of his liberty. What can we do?

Q: Our adult son has learning difficulties. At eighteen he moved into supported living accommodation where he seemed happy, but earlier this year the authorities moved him, saying he needed to be in a more secure environment. He is not happy and we believe his freedom is being unnecessarily restricted but we don't know what to do.

A:  The Deprivation of Liberty Safeguards (DoLS) aim to ensure that people in care homes, hospitals and supported living are looked after in a way that does not inappropriately restrict their freedom. The safeguards apply to vulnerable people aged 18 or above who have a mental health condition (including a learning disability or dementia) and who lack the mental capacity to make decisions about their care or treatment.

Key elements of the safeguards are to (a) provide the person with a representative, (b) give the person or their representative the right to challenge a deprivation of liberty through the Court of Protection and (c) provide a mechanism for Deprivation of Liberty to be regularly monitored and reviewed.

Following a Supreme Court judgment handed down in March this year the elements of Deprivation of Liberty are defined as someone being (a) obliged to live a particular place, (b) subjected to constant monitoring and control, (c) only being allowed out with close supervision and (d) being unable to move away without permission.

If your son is subject to such Deprivation of Liberty, firstly the care home where he lives, and secondly the local authority should be persuaded to either release him from Deprivation of Liberty or formally authorise the Deprivation of Liberty to take place. If your son is unable to make his own decisions you could also apply to the Court of Protection for determination on where he should live. In all cases you should seek expert advice as the process may need firm advocacy from a specialist lawyer.

John Lancaster

John Lancaster

Senior Solicitor

Senior Solicitor and former Partner and part of our Family and Mental Health team in Wrexham