Sir Ranulph Fiennes: Deprivation of Liberty Safeguards
Posted on in Court of Protection
The recent Telegraph investigation regarding the explorer, Sir Ranulph Fiennes, has brought into focus an important area of law protecting the vulnerable: the Deprivation of Liberty Safeguards.
Although they are yet to be officially confirmed, reports surrounding Sir Ranulph’s care arrangements have alleged that he has been moved secretly between care homes in England and Wales and is unable to see friends or family. More shocking claims include that Sir Ranulph is only permitted outside in disguise, with a strict daily routine and medication.
What are the Deprivation of Liberty Safeguards?
The Deprivation of Liberty Safeguards, established under the Mental Capacity Act 2005, provide a legal framework for protecting people who lack the mental capacity to consent to their care or treatment. A person may lack mental capacity if they have dementia, a neurological condition, or an acquired brain injury, for example.
DoLS ensure that a person’s freedom is not restricted on the basis that carers, relatives or professionals only feel that the arrangements are appropriate. There is a process to follow with appropriate assessment, review and consideration, to ensure that care arrangements do not amount to an unauthorised deprivation of liberty. The current statutory guidance emphasises that deprivation of liberty should be lawful, proportionate and in the person's best interests.
When can there be a Deprivation of Liberty?
This can happen where a person is:
- Subject to continuous supervision and control
- Not free to leave their setting
- Unable to consent to their position and treatment.
Has the law recently changed?
The DoLS law remains, but a recent Supreme Court case has amended the test for a Deprivation of Liberty. There must be a multi-factorial assessment, considering:
- the type of restrictions (for example, locked doors, physical control, supervision, sedating medication social isolation and so on)
- the duration of those restrictions
- the effects of the restrictions on the person
- the manner of implementation of the restrictions
- whether the person objects
- how far removed the case is from the situation of detention in a prison cell
- the relative normality of the arrangements (for example, greater restrictions would be required at home in order for deprivation of liberty to arise)
- the purpose of the arrangement, for example whether the arrangements are for care and protection, rather than punishment or coercion
Importantly, the person’s apparent wishes and feelings should be considered as crucial. Following this case, if the person appears to agree to the deprivation, they may be considered to be giving valid consent in relation to a deprivation of liberty even if they lack legal capacity to consent to their care and residence under the MCA 2005.
What do I need to do if my relative may be affected?
If you act as an Attorney under a Lasting or Enduring Power of Attorney, or a Deputy under a Deputyship Order, you may need to consider these safeguards. However, family members of those lacking mental capacity should also familiarise themselves with the position.
How can Tozers help?
Tozers' specialist Court of Protection team advises families, deputies and trustees on the management of attorneyships and deputyships. If you would like to discuss your circumstances, we would be happy to explain the options available and help you determine the most appropriate route forward.