The Deprivation of Liberty Safeguards (DoLS) apply to people aged 18 and over who lack capacity to give consent to arrangements for their care or treatment. The care or treatment could be in either a hospital or care home. The Deprivation of Liberty Safeguards apply to people who need to be deprived of liberty in their own best interests, to protect them from harm. The safeguards are to ensure that care is given in the least restrictive way and to provide safeguards for vulnerable people.
The Mental Capacity Act Deprivation of Liberty Safeguards apply to anyone aged 18 or over who:
- suffers from a mental disorder or disability of the mind
- lacks capacity to give informed consent to arrangements made for their care and/or treatment, and
- for whom deprivation of liberty is considered, after an independent assessment, to be necessary and in their best interests to protect them from harm.
If you believe either yourself or an individual you know is being accommodated for care and treatment by way of arrangements which amounts to a deprivation of their liberty. A request can be made to the Managing Authority [the care home/hospital] to issue an Urgent Authorisation [for up to 7 days] and apply for a Standard Authorisation from the Supervisory Body. You can do this by writing to the Managing Authority using this template letter.
Upon receipt of the DoLS Application the Supervisory Body (a specialised department of Trafford Council) will be responsible for arranging assessments to identify whether or not the relevant person is being subjected to a deprivation of their liberty. The Supervisory Body will appoint a Best Interest Assessor (BIA) and a Mental Health Assessor (MHA) who together will take the necessary steps to identify whether the relevant person meets all of the requirements in which to be considered for a Deprivation of Liberty Safeguard. The BIA has a duty to consult with all parties involved in the accommodation and welfare arrangements concerning to the relevant person when considering if the present arrangements are in the relevant person’s best interests.
Upon all DoLS requirements being met, the Supervisory Body will grant a standard authorisation for a specified time. The Supervisory Body may set Conditions for the Managing Authority to comply with. The Supervisory Body will also appoint a Relevant Person’s Representative (RPR), this could be a family member of friend who will be able to represent the relevant person’s wants, wishes and needs, and take the necessary steps (if applicable) to request a review, raise complaints on behalf of the relevant person, or proceed cases to the Court of Protection for any unresolved disputes/conflicts concerning the decision of where the relevant person should be accommodated for their care and treatment. If the Supervisory Body cannot identify someone who knows the relevant person in a non paid capacity to be appointed as RPR, then an Independent RPR will be appointed by the Supervisory Body.
The Managing Authority must consider making a DoLS application if:
- a person in their care lacks mental capacity to consent to their accommodation for care and treatment,
- meets the “acid test” in which they are considered to be under continuous supervision and control, and not free to leave,
- and have explored all less restrictive alternative care arrangements.
The Managing Authority has the power to self authorise using an Urgent Authorisation. The Urgent Authorisation can last for up to 7 days. The Managing Authority must complete Form 1.
The Managing Authority must also request a Standard Authorisation when issuing an Urgent Authorisation. This can be done using the same form. The Managing Authority can apply for a standard authorisation up to 28 days prior to the relevant person being accommodated in to their care, if they believe it will result in a deprivation of liberty. If a standard authorisation application is all that is required, you do not need to complete pages 6 and 7 of Form 1.
The Managing Authority has the power to request from the Supervisory Body an Extension to an Urgent Authorisation for a maximum of 7 days if it is deemed to be for an “exceptional reason” [see Mental Capacity Act 2005 schedule A1 part 5 paragraph 84].
Upon assessments being completed and relevant person’s meeting all of the DoLS requirements, the Supervisory Body will grant a Standard Authorisation. It may attach Conditions which the Managing Authority must comply with. The standard authorisation will be for a specified time (maximum 12 months). The Managing Authority must adhere to Conditions, and must also make a further request for a Standard Authorisation if they believe the relevant person will continue to be deprived of their liberty following the expiry of any existing standard authorisation. You can request this by completing Form 2.
The Managing Authority can request a Part 8 Review of an existing standard authorisation at any time. The Supervisory Body will allocate a BIA to review the case. This can be requested using Form 10.
The Managing Authority can notify the Supervisory Body if a relevant person is admitted to hospital in order to be detained under the Mental Health Act 1983 [Amended 2007] using Form 7. The Managing Authority can use the same Form to notify the Supervisory Body that they have reinstated the standard authorisation (in the event the relevant person has returned within 28 days), or notify that the standard authorisation has ceased (in the event the relevant person has not returned within 28 days).
The Managing Authority have a duty to notify the Supervisory Body using a Form 12 if a relevant person in their care dies whilst subject to a Standard Authorisation. All referrals must be sent to Trafford Council via email to email@example.com.
Following the Supreme Court decision of 19 March 2014, those who are assessed as lacking mental capacity to consent to their accommodation and care arrangement and reside in what is considered a 'domestic setting' must have any deprivation of their liberty authorised by the Court of Protection. Such settings include:
- Supported housing (where support is provided on a 24/7 basis)
- Shared lives and adult placement schemes ('Domestic Settings')
- Post-18 residential colleges
The 'acid test' for whether those arrangements amount to a deprivation of liberty is as follows:
- Is the individual subject to continuous supervision and control, and
- Is the individual NOT free to leave the placement, and
- Is the individual unable to consent to such arrangements
If the answer to all of the above questions is 'Yes', then the person is likely to be deprived of their liberty and authorisation must be sought from the Court of Protection for that to continue in each case. A deprivation of liberty that does not have the appropriate authorisation will be unlawful.
In relation to being "free to leave", Lord Justice Mumby gave this guidance: "When I refer to leaving X home or leaving Y home I do not mean leaving for the purpose of some trip or outing…I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses…"
For more information please contact the Deprivation of Liberty Safeguards team on 0161 912 2036 or email firstname.lastname@example.org.