Challenges to Deprivation of Liberty Orders in England Surge by 31%
The number of court applications related to deprivation of liberty (DoLs) orders in England has surged, reaching an all-time high in the first quarter of 2024. Advocates are expressing concerns that vulnerable individuals receiving care are increasingly being deprived of their liberty as a cost-saving measure.
DoLs orders are a legal measure under the Mental Health Capacity Act 2005 that allows for the restriction of an individual’s freedom of movement to ensure their safety when they lack the capacity to make decisions for themselves. These orders, intended as a last resort, are increasingly being used, raising concerns among campaigners that such restrictions on freedom are being implemented more frequently as a more economical option.
Recent figures from the Ministry of Justice reveal that challenges to DoLs orders brought before the Court of Protection (CoP) in England surged to 653 in the first quarter of 2024, marking a 31% increase from the previous year.
DoLs orders often affect older individuals with dementia, younger adults with severe learning disabilities, brain injuries, or those struggling with severe drug or alcohol dependencies. These individuals frequently have complex care needs, and in some cases, care homes or hospitals propose measures involving deprivation of liberty, such as constant supervision, being confined to rooms, or even physical restraints.
The Surge in Re X Applications and Community DoLs Cases
One of the most notable increases was seen in Re X applications, which allow the Court of Protection to authorise deprivations of liberty in non-contentious cases, without the need for a hearing in some instances. In the first quarter of 2024 alone, there were 1,211 Re X applications—a 27% rise from the average over the past four years.
The Re X process allows the court to make decisions in cases where individuals live in community settings, provided that the case is straightforward and uncontested. Applicants, typically councils or NHS bodies, must submit detailed information similar to that required in DoLS assessments, ensuring that the deprivation of liberty is in the person’s best interests and proportionate to the risks involved.
Increasing Challenges to DoLS Authorisations
The number of challenges to DoLS authorisations has also seen a sharp increase, with 653 such applications filed between January and March 2024. These challenges are typically brought by the individuals under DoLS orders or their representatives, often questioning the validity, duration, or conditions of the deprivation of liberty.
This trend of increasing challenges reflects broader issues within the care system. As DoLS applications continue to rise, reaching over 300,000 in 2022-23, concerns have grown about the adequacy of care provided and the extent to which individuals’ freedoms are being unnecessarily restricted. Arguing that these orders are sometimes used as a cost-saving measure, leading to more vulnerable people being placed under restrictive supervision rather than receiving care that promotes independence.
Social workers suggest that the increase in challenges may be related to hospital discharges, with some elderly patients being moved into nursing homes before they have fully recovered, rather than being allowed to return to their own homes.
Professionals in social care have noted that the rise in challenges indicates that vulnerable individuals and their families are receiving more support from local authorities to contest DoLs orders. However, the 31% increase may still significantly underestimate the number of people dissatisfied with their care.
Age UK reported in March that some individuals were being unlawfully deprived of their liberty because local authorities lacked the resources to process DoLs authorisations promptly. The backlog of cases exceeded 100,000, with an estimated 50,000 people passing away while awaiting their application to be processed in 2022-23.
Reforming the Mental Health Act
The government has committed to reforming the Mental Health Act to provide individuals with more choice, autonomy, rights, and support if detained. Additionally, it plans to limit the circumstances under which individuals with learning disabilities or autism can be detained. DoLs orders, however, are issued under separate legislation, the Mental Capacity Act. There had been proposals to reform DoLs into a new Liberty Protection Safeguards (LPS) scheme, however to date, this has not been implemented.
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DoLS Appeals
If someone you know or love has been deprived of their liberty or is subject to a DoLS, you can call us on 01642 247656 to discuss making an appeal, known as a Section 21A appeal.
Alternatively, complete our online contact form and one of our solicitors will be in touch.
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If you or a loved one has been mistreated by a Public Authority and would like advice, guidance and representation with regards to making a claim, contact our team on 01642 247656 or complete our online contact form and one of our solicitors will be in touch.
