This depends on whether the deprivation of liberty is already authorised and whether it is authorised under the DoLS or by the Court of Protection.

Before an application for an authorisation is made the incapacitated person or their representative can apply to the Court of Protection to determine any question which is relevant to the authorisation criteria, for instance whether the person lacks capacity.

Once a DoLS authorisation has been made the incapacitated person’s representative or any other person can apply to the Court of Protection to determine any relevant question such as the length of the authorisation or the purpose of the authorisation. The Court of Protection can decide whether the person bringing the application should be allowed to do so. The following people have an automatic right to apply to the Court of Protection and don’t have to seek the Court’s permission to make an application:

• the incapacitated person;
• the donor of a Lasting Power of Attorney to whom an application relates, or their donees;
• a deputy who has been appointed by the court to act for the person concerned ;
• a person named in an existing court order to which the application relates;
• the person appointed by the supervisory body as the relevant person’s representative.

It is very important that the views of the incapacitated person as to where they are accommodated and what restrictions should be applied to them are taken into account and that relevant people who are involved in the life of that person are also consulted.

If you disagree with the decision of a DoLS assessor you may have a right to challenge it and, if it is not possible to resolve the matter, you may be able to ask the Court of Protection to decide what should be done.

Next Steps

If you are unsure about how this issue will affect you, or you are concerned that care arrangements are restrictive or not in a person’s best interests you should first contact your Local Authority (or the body caring for you / your family member/friend) and request additional information from them about the assessment process and decision being taken.

If you are the parent of a child approaching the age of 16 who is being cared for in circumstances which may be depriving them of their liberty you should be aware that the Court of Protection may need to approve future arrangements.

Hugh Jones Solicitors are experts in advising on issues of deprivation of liberty and can assist you with advice about these issues including how to challenge a decision should the need arise.

Hugh Jones Solicitors have experts in in this complex field who can help you with advice and drafting of an LPA for Health and Care and documenting your Advance Decision Making.

Contact info@hughjonessolicitors.co.uk or call us on 0161 871 3680 for a free initial chat.