Relevant Person's Representative and Deprivation of Liberty

When a person has lost mental capacity and a decision is made on their behalf that they need to move into a full-time care setting, this can amount to what is called a “deprivation of liberty”. This is, strictly speaking, a breach of your Article 5 right to liberty and security under the European Convention on Human Rights.

For a person to be deprived of their liberty, the living arrangements for that person must the “acid test” which asks two questions:

1) whether the person is under continuous control and supervision; and

2) whether they are free to leave.

Many care home settings meet this acid test by having a locked door policy and keeping a close eye on residents and their needs. These restrictions are, of course, often needed to maintain the safety and wellbeing of the vulnerable person being cared for.   

If someone is subject to a deprivation of liberty, the local authority is required to put in place a “deprivation of liberty authorisation”. This is a formal document which records the fact the deprivation of liberty is in existence, that it is considered to be in the best interests of that person and their welfare for it to be in place, and it also requires that this should be kept under review. 

For each deprivation of liberty authorisation in place, someone must be appointed as what is called the “relevant person’s representative” (RPR). Their role is to make regular visits to the person to obtain their views, wishes and feelings. If they express objections to the deprivation of liberty arrangements, there is an obligation on that individual to initiate an application in the Court of Protection for those arrangements to be formally reviewed.

What amounts to an “objection” cannot be strictly defined but can encompass a number of behaviours and interpretations. This can be words expressed such as “I want to go home”, “when I get home”, “I’m here temporarily”. It can be by actions which may include pacing, attempting to open doors and windows or packing bags. No expression is exclusive, and the person could demonstrate one or more than one type of objection. Whether there is an objection present can also depend on each individual person and the limitations they may have as to how they are able to express themselves.

The person who acts as the RPR is often an independent professional from an advocacy organisation, but it is also commonly a relative of the person in care. It is a more onerous position for a relative, as it can be difficult for individuals to judge when there is an objection present that should be reviewed by the court. It is however very important that this is pursued in accordance with the rights of the person who is in receipt of the care.

Bringing an application to the court should not be an acrimonious process. It is intended to be collaborative and merely allows the person receiving care to have their situation formally reviewed in light of their objections. The parties involved will be expected to thoroughly consider and evidence to the court all options there may be for the person to receive care and support in a less restrictive way. The court is the ultimate decision maker and will confirm at the end of the process what they believe is in the person’s best interests.

All applications of this nature are fully funded by legal aid.

If you act as an RPR for a family member under a deprivation of liberty and you are unsure whether they are objecting to their care and support arrangements or whether this should be reviewed by the court, please get in contact with our court of protection team Andrew Spooner, aspooner@biscoes-law.co.uk, Kez Bhola-Dare Kbholadare@biscoes-law.co.uk or Tasha Bibby tbibby@biscoes-law.co.uk or by calling 02392 660 261