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More statistics on the deprivation of liberty safeguards – how much is really changing?

Our People - Maria Nicholas
10 August, 2012

On 17 July 2012, the NHS Health and Social Care Information Centre published its third report on deprivation of liberty safeguards.

This looks at the number of requests for standard authorisations made, and granted, between 1 April 2011 and 31 March 2012. These authorise the deprivation of a person’s liberty, in their best interests. The number of requests has increased by 27% compared to the previous year, and 56% of the requests have been successful. There are essentially more people subject to standard authorisations than last year or the year before.

The figures in the report suggest that someone in a care home is more likely to be under a standard authorisation that someone in hospital. The figures also show that standard authorisations are lasting for a longer period of time for people in care homes, than in hospitals.

Further, there are regional variations, with the East Midlands having the highest rate of applications, and London having the lowest in England.

However, what we still do not know is how many people there are in cares homes or hospitals who are being deprived of their liberty without any authorisation.

From an individual’s and their family’s perspective, a standard authorisation offers some protection, in the sense that there is something concrete in existence to challenge, no permission is required to make an application in the Court of Protection (unlike other welfare matters in the Court), and legal aid is non-means tested for the person being deprived and their relevant person’s representative (again, unlike other welfare matters in the Court, which are means-tested). It also removes an important hurdle – the need to successfully persuade the Court that someone is being deprived of their liberty, in order to then challenge the deprivation. If the individual is already under a standard authorisation, it is most likely that all parties will be agreed that there is a deprivation, and the arguments can focus instead on what is in their best interests.

This comes at a time when Steven Neary will be receiving £35,000 in compensation from the London Borough of Hillingdon for the unlawful deprivation of his liberty, and this was a case where a standard authorisation was used, but inappropriately. For local authorities, and Primary Care Trusts, there is a fine line to tread between ensuring that a deprivation of a person’s liberty is authorised, and over-use of the deprivation of liberty safeguards to circumvent a family’s objections to the care being provided to their loved one.

Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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