The Mental Capacity Act 2005 (“The Act”) was a very important piece of legislation concerning vulnerable people - those who do not have the mental capacity to make decisions for themselves.  Those decisions may relate to finances where to live or even what type of treatment or care they should receive.

The Act changed the rules regarding the procedure to be followed for appointing someone to act on your behalf - known as Lasting Powers of Attorney relating to Property and Affairs or Personal Welfare and also the way matters are dealt with if there is no such document in place so that a Deputy application to the Court of Protection needs to be made.

The Act introduced the concept of “Deprivation of Liberty Safeguards” - to ensure that where a vulnerable person is unable to consent to treatment or is being deprived of their liberty,  perhaps in a care home or hospital, that particular safeguards are in place to ensure that their best interests are being assessed and that their liberty is being restricted in the least restrictive way!

The safeguards were introduced to prevent breaches of the European Court of Human Rights such as those indentified in the “Bournewood” judgement.

The purpose of the Safeguards is to ensure that there is a proper procedure to protect those in circumstances where deprivation of liberty is taking place.  If it is, then that deprivation needs to be authorised and there is a particular procedure to be followed to document whether or not the deprivation can continue.

If you have any concerns that deprivation of someone’s liberty is taking place or you require further information then please contact us.