May 2020: Coronavirus / COVID-19
Although the Mental Capacity Act and Deprivation of Liberty Safeguards were not amended by the Coronavirus Act 2020, the Department of Health and Social Care issued interim guidance to inform the application of the Deprivation of Liberty Safeguards and ensure timely responses during the pandemic. Hull City Council MCA and DoLS Interim Policy during the Coronavirus (COVID-19) Pandemic reflects that guidance and is only valid during the COVID-19 pandemic. Please ensure you read this chapter.
This chapter is used with kind permission of Brighton and Hove Adult Social Care.
- 1. Legislative Background and Purpose
- 2. Who is Covered by the Safeguards?
- 3. When Can Someone be Deprived of their Liberty?
- 4. How Do the Safeguards Relate to the Mental Capacity Act 2005?
- 5. What Does the Mental Capacity Act mean by ‘Restraint’?
- 6. Care Homes and Hospital Settings
- 7. How and When Can Deprivation of Liberty be Applied for and Authorised?
- 8. Out of Area Placements
- 9. Urgent Authorisations
- 10. The Role of the Independent Mental Capacity Advocate (IMCA)
- 11. The DoLS Assessment Process
- 12. Professional Standards
- 13. The Best Interests Assessment
- 14. Eligibility Assessment
- 15. Authorisation Process
- 16. The Role of the Relevant Person’s Representative
- 17. Reviews of Deprivation of Liberty Authorisations
- 18. Unauthorised Deprivation of Liberty
- 19. How Will the DoLS be Monitored?
- 20. Administrative Systems
- 21. DoLS and Safeguarding Adults
- 22. Legal Advice
1. Legislative Background and Purpose
The Deprivation of Liberty Safeguards were introduced on 1st April 2009 via the amended Mental Health Act 2007. These safeguards will provide legal protection where deprivations of liberty or restrictions in freedoms for individuals are assessed as necessary. These arrangements will only apply to people, not otherwise provided for in terms of legal safeguards who are currently resident in hospitals (both acute medical, hospices and psychiatric) or care homes registered under the Care Standards Act 2000.
The Deprivation of Liberty Safeguards came into being due to the European Court of Human Rights ruling in 2004 on the Bournewood case which highlighted the need for additional safeguards for people who lack capacity and might be deprived of their liberty. The Bournewood case concerned an autistic man with severe learning disabilities who was informally admitted to Bournewood Hospital in Surrey under common law. The European Court of Human Rights found that he had been deprived of his liberty unlawfully, because of a lack of a legal procedure that offered sufficient safeguards against arbitrary detention and speedy access to a court. The Deprivation of Liberty Safeguards has closed the ‘Bournewood Gap’ and will ensure compliance with the European Convention on Human Rights.
An assessment must be made as to whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised (either by the Deprivation of Liberty Safeguards (hospitals / care homes) or by the Court of Protection (domestic settings such as supported living arrangements), and subject to regular independent checks.
These operational guidelines outline the principles for achieving the successful operation of the Deprivation of Liberty Safeguards. These guidelines recognises that, in certain circumstances, deprivations of liberty may need to be authorised for some people known to the local authority and health commissioners whilst alternative means of providing the care in a less restrictive manner are explored and developed. These decisions would have to be assessed as in a service user’s Best Interests.
This guidance contains key features of the Deprivations of Liberty Safeguards and includes guidance to promote compliance with the legislation. It is to be viewed as a supplement to, not a replacement for, the statutory Code of Practice and Regulations.
The MCA principles of supporting a person to make a decision when possible, and acting at all times in the person’s best interests and in the least restrictive manner, will apply to all decision making in operating the procedures.
The MCA DOLS cover:
- How an application for authorisation should be applied for;
- How an application for authorisation should be assessed;
- The requirements that must be fulfilled for an authorisation to be given;
- How an authorisation should be reviewed;
- What support and representation must be provided for people who are subject to an authorisation; and
- How people can challenge authorisations.
Their purpose is to secure independent professional assessment of:
- Whether the person concerned lacks the capacity to make his/her own decision about whether to be accommodated in the hospital or care home for care or treatment, and
- Whether it is in his/her best interests to be detained.
2. Who is Covered by the Safeguards?
These safeguards apply to people in England and Wales who have a mental disorder (as defined by the Mental Health Act 2007) and lack capacity to consent to the arrangements made for their care and treatment; but for whom receiving care and treatment in circumstances that amount to a deprivation of liberty may be necessary to protect them for harm and appears to be in their Best Interests. These safeguards only apply to people detained in a hospital setting (acute medical, hospices and psychiatric) or a care home registered under the Care Standards Act 2000. The safeguards are not intended to authorise treatment but a person might be deprived of their liberty for the purpose of receiving treatment. Treatment can only be given with consent or in accordance with the Mental Capacity Act for those patients that lack capacity.
The safeguards do not apply to people detained in hospital under the Mental Health Act 1983. The eligibility assessment will determine whether people can be subject to the Deprivation of Liberty Safeguards and the Mental Health Act 1983.
These safeguards only relate to people aged 18 or over. The Children Act 1989, Mental Health Act 1983 or an application to the Court of Protection should be considered if issues of deprivation liberty occur for people under the age of 18. Consideration should be given to making an application to the Court of Protection in these circumstances.
3. When Can Someone be Deprived of their Liberty?
- When the Relevant Person lacks the capacity to consent to the arrangements made for their care or treatment;
- If it’s in their Best Interests to protect them from harm;
- If it’s a proportionate response to the likelihood and seriousness of harm;
- If there is no less restrictive alternative;
- That it is recommended by the Best Interests Assessor following the DoLS assessment process and has been authorised by the Supervisory Body.
3.1 Revised Test for Deprivation of Liberty
The Supreme Court has clarified (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights where the person:
- Is under continuous supervision and control; and
- Is not free to leave; and
- Lacks capacity to consent to these arrangements.
The Court held that factors which are NOT relevant to determining whether there is a deprivation of liberty include: the person’s compliance or lack of objection; the reason or purpose behind a particular placement; and the extent to which it enables them to live a relatively normal life for someone with their level of disability.
This test is far broader than those set by previous judgements – disabled people should not face a tougher standard for being deprived of their liberty than non-disabled people.
The Supreme Court has held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This will include a placement in a supported living arrangement in the community. These must be authorised by the Court of Protection.
3.2 Authorising a Deprivation of Liberty
The DoLS process for obtaining a standard authorisation or urgent authorisation can be used where individuals lacking capacity are deprived of their liberty in a hospital or care home.
The Court of Protection can also make an order authorising a deprivation of liberty; this is the only route available for authorising deprivation of liberty in domestic settings such as supported living arrangements. This route is also available for complex cases in hospital and/ or care home settings.
Individuals may also be deprived of their liberty under the Mental Health Act if the requirements for detention under that Act are met.
4. How Do the Safeguards Relate to the Mental Capacity Act 2005?
The safeguards are an addition to the Mental Capacity Act and as such any decisions made must be subject to the provisions and the five key principles of the MCA:
- A person must be assumed to have capacity unless it is established that he / she lacks capacity;
- A person is not to be treated as unable to make a decision unless all practicable steps to help him / her to do so have been taken without success;
- A person is not to be treated as unable to make a decision merely because he / she makes an unwise decision;
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his / her Best Interests;
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
5. What Does the Mental Capacity Act mean by ‘Restraint’?
Section 5, MCA permits, under certain conditions, the use of restraint in order to provide care or treatment which is judged to be in the Best Interests of a person assessed not to have capacity in relation to the treatment / care decision.
Restraint is defined as the use, or threat, of force where a person who lacks capacity resists, or any restriction of liberty or movement whether or not the person resists.
Restraint is only permitted if the person using it reasonably believes it necessary to prevent harm to the person who lacks capacity, and if the restraint used is a proportionate response to the likelihood and seriousness of the harm (MCA COP 6.40-48).
Section 6 of the Act sets out limitations on acts of care or treatment which can be carried out under S5 (COP 6.49-6.53). Acts which include disproportionate restraint, or amount to a deprivation of liberty within the meaning of Article 5 (1) of the European Convention on Human Rights, are not protected from liability.
It is worth considering the duration of any restrictions as it has been raised in ECtHR judgements. The inference is that actions which are immediately necessary to prevent harm may not constitute deprivation of liberty.
Consideration should be given when the restraint or restriction is frequent, cumulative and on-going, or if other factors are present then care providers should consider whether this has gone beyond permissible restraint.
The Deprivation of Liberty Safeguards Code of Practice discusses restraint in 2.8-2.12. The key points are that:
- Restraint is appropriate when it is used to prevent harm to the person who lacks capacity and it is a proportionate response to the likelihood and seriousness of harm. Appropriate use of restraint falls short of deprivation of liberty;
- Locking a door to guard against immediate harm is unlikely to amount to a deprivation of liberty;
- Where the restriction or restraint is frequent, cumulative and on-going, or if there are other factors present, then care providers should consider whether this has gone beyond permissible restraint as defined in the Mental Capacity Act.
Section 5 of the Mental Capacity Act (Chapter 6 of the MCA Code of Practice) allows carers, healthcare and social care staff to carry out certain tasks without fear of liability. These tasks involve the personal care, healthcare and treatment or people who lack Capacity to consent to them. The aim is to give legal backing for acts that need to be carried out in the Best Interests of the person who lacks the capacity to consent.
6. Care Homes and Hospital Settings
Care homes and hospital wards have responsibilities under DoLS to ensure that none of their residents/patients are unlawfully deprived of their liberty; that is, without the appropriate authorisation.
- DoLS authorisations will be issued, where appropriate, following statutory assessments. Local authorities have responsibilities under the safeguards to:
- Carry out the functions of the Supervisory Body as detailed in the DoLS Code of Practice. This includes:
- Receiving requests for authorisations from care homes and hospitals,
- Commissioning statutory assessments, and granting Deprivation of Liberty authorisations where appropriate.
The Safeguards also apply to privately arranged care, i.e. self-funded residential care.
Local authorities have a responsibility to protect the human rights of all vulnerable people, particularly in reference to these safeguards, those who may be at risk of deprivation of liberty, i.e. people who have variable or no capacity to decide where they should live and also require substantial restraint/restrictions as part of their Care Plan.
The Department of Health Advice Note (March 2014) stated that relevant staff in local authorities and care providers should ‘take steps to review existing care and treatment plans for individuals lacking Capacity to determine if there is a ‘deprivation of liberty’ in the light of the Supreme Court ruling. Where people are deprived of their liberty – and this is judged to be in their best interests – this must be authorised.
6.2 Conveyance to hospital or care home
Transporting a person who lacks capacity from their home or another location to a hospital or care home will not usually amount to a deprivation of liberty. Even if a DoLS authorisation will be in place at the receiving hospital or care home it is unlikely that the journey will constitute a deprivation and can take place under the broader provisions of the Mental Capacity Act.
Since April 2009 the scope of a DoLS authorisation has been considered by the Court of Protection as to whether it is valid outside the physical environment of the Managing Authority or to return a patient. It is advised that if a DoLS assessment is considering these options then legal advice should be sought via the assessment process. The issue in question is likely to be whether any potential restraint used and frequency of such action may in itself be a deprivation of liberty beyond the scope of the Best Interest’s framework of the Mental Capacity Act and the DoLS safeguards and require an application to the Court of Protection.
6.3 Patients in intensive care
The judgement in R (Ferreira) v HM Senior Coroner for Inner South London held that for patients in intensive care they are not necessarily deprived of their liberty as per the acid test in Cheshire West, as the facts in the two cases differed. The effect of this judgement is that even if a patient in intensive care appears to be deprived of their liberty, they will not be said to be so if the primary condition they are being treated for is a physical condition even if there is an underlying mental disorder and they are an inpatient in intensive care.
“There is in general no need in the case of physical illness for a person of unsound mind to have the benefit of safeguards against deprivation of liberty where the treatment is given in good faith and is materially the same treatment as would be given to a person of sound mind with the same physical illness.” (Judge Lady Justice Arden)
She also held however that there may be some circumstances where a deprivation of liberty arises and needs to be authorised. In NHS Trust I v G  for example, a hospital sought authorisation to deprive a pregnant woman of her liberty. The order prevented her from leaving the delivery suite and authorised invasive medical treatment such as a caesarean section.
Any treatment, therefore, for a primary condition which is a physical condition will not constitute a deprivation of liberty where the same treatment would be given to a patient who had capacity. This case is however subject to appeal to the Supreme Court. In such circumstances, staff should always take advice from their legal department.
6.4 Domestic settings
The Supreme Court has held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This will include a placement in a supported living arrangement in the community. Where there is, or is likely to be, a deprivation of liberty in such placements must be authorised by the Court of Protection.
7. How and When Can Deprivation of Liberty be Applied for and Authorised?
The safeguards have new roles of Managing Authorities and Supervisory Bodies.
Registered care homes and hospitals act as Managing Authorities and required to identify people within their care whom they feel may come within the scope of the safeguards. Prior to issuing an Urgent Authorisation or requesting a Standard Authorisation, Managing Authorities must consider all the factors mentioned above and ensure that deprivation of liberty is a last resort and that all alternative less restrictive options have been exhausted.
The Managing Authority should use the prescribed forms (Urgent Authorisation Form 1 and Request for a Standard Authorisation Form 4) and submit these to the Supervisory Body.
The Managing Authority must inform the Relevant Person’s friends, family and / or carers if they are making a request for a DoLS authorisation. The Managing Authority must inform the Supervisory Body if they have identified that the relevant person is un-befriended and meets the eligibility criteria for an IMCA.
Managing Authorities should ensure they send the forms to the responsible Supervisory Body where the Relevant Person is ordinary resident. If the Managing Authority is unsure as to the Relevant Person’s ordinary residence then they should send the forms to their local Supervisory Body.
Supervisory Bodies are responsible for considering requests for authorisations, commissioning the assessments and, when required, authorising the deprivation of liberty. Managing Authorities should have their own policies and procedures relating to the Mental Capacity Act, Deprivation of Liberty Safeguards and Safeguarding Adults at Risk for organising their authorisation requests.
Managing Authorities are reminded of their responsibilities to report DoLS authorisations and their outcomes to the Care Quality Commission. Further information relating to this statutory duty can be found on the Care Quality Commission website.
If a service user dies when they are subject to a Deprivation of Liberty Safeguards then this must be reported to Her Majesty’s Coroner.
8. Out of Area Placements
If the Relevant Person is deprived of their liberty in a care home then the Supervisory Body will be the Local Authority. For a hospital setting the Supervisory Body will be the Clinical Commissioning Group (CCG). The DoLS Code of Practice 3.3 gives guidance about Ordinary Residence and when the ‘placing’ local authority or CCG retains responsibility for the service user or patient.
A protocol for Out of Area Placements for Deprivation of Liberty Safeguards has been written by the Association of Directors for Adult Social Services (ADASS) which should be used for determining the responsible Supervisory Body for patients and service users placed in care homes and hospitals outside the Local Authority and CCG boundaries.
In Hull the following factors will be the basis of the approach:
- Reciprocity rather than cross charging between these neighbouring authorities;
- A prompt, efficient, responsive local service between the neighbouring authorities dependent on service pressures at the time of the request.
9. Urgent Authorisations
Managing Authorities can issue themselves with Urgent Authorisations if a deprivation of liberty is unavoidable and needs to commence before a Standard Authorisation can be obtained.
Managing Authorities must apply for a Standard Authorisation in addition to completing the standard forms for an Urgent Authorisation. They must only be issued in the belief that the Relevant Person will most likely meet the qualifying requirements for the Standard Authorisation.
The Managing Authority must complete the forms with as much detail as possible focusing in particular on what actions have been taken to avoid a deprivation of liberty and how they have considered delivering care interventions in alternative ways. The managing authority will include copies of care plans, risk assessments and Best Interest decisions with the application.
The Managing Authority can decide the period of time that the Urgent Authorisation will last but it must not exceed seven days and must be completed on the standard form: Form 1 Urgent Authorisation.
The Managing Authority must consult and take into account the views of carers, friends and family members but be mindful that the decision to complete an Urgent Authorisation belongs to the Managing Authority and must be taken in the Relevant Person’s Best Interests.
An Urgent Authorisation can be used to move someone into care but consideration must be given as to whether this will have a detrimental effect on the Relevant Person’s mental health. Therefore a risk assessment of such a plan is required. An Urgent Authorisation does not grant the authority to convey a patient and this matter might warrant separate consideration under the Best Interests framework of the Mental Capacity Act.
In addition to the above an Urgent Authorisation can be used to facilitate discharge from an acute hospital (medical & psychiatric) to a care home. Given that these are planned discharges following assessment in ordinary circumstances an application for a Standard Authorisation should be considered in the first instance. Consideration will need to be given as to whether a prolonged stay in an acute hospital is in their Best Interests via the DoLS assessment process. Best endeavours will be made to carry out DoLS assessment in the shortest possible time frames in receipt of an Urgent Authorisation.
An urgent authorisation will terminate at the end of the period for which it is given and this is usually seven days. In exceptional circumstances this can be extended for a maximum of 14 days by the Supervisory Body. It will also terminate if the Supervisory Body concludes that there is no deprivation of liberty. The DoLS Code of Practice gives further detail about grounds for an extension and the issues for consideration.
10. The Role of the Independent Mental Capacity Advocate (IMCA)
The role of the IMCA originally introduced under the Mental Capacity Act 2005 has been extended for the Deprivation of Liberty Safeguards. The role and qualifying requirements for an IMCA can be found in the Code of Practice for the Mental Capacity Act.
The Managing Authority is obliged to inform the Supervisory Body if an IMCA is required and the Supervisory Body must instruct an IMCA in a timely manner to ensure the Relevant Person is appropriately represented especially if an Urgent Authorisation has been given. There are additional rights and responsibilities of an IMCA under the DoLS safeguards and these are:
- As they consider appropriate, give information or make submissions to assessors, which assessors must take into account in carrying out their assessments;
- Receive copies of any assessments from the supervisory body;
- Receive a copy of any standard authorisation given by the supervisory body;
- Be notified by the supervisory body if they are unable to give a standard authorisation because one or more of the deprivation of liberty assessments did not meet the qualifying requirements;
- Receive a copy of any urgent authorisation from the managing authority;
- Receive from the managing authority a copy of any notice declining to extend the duration of an urgent authorisation;
- Receive from the supervisory body a copy of any notice that an urgent authorisation has ceased to be in force;
- Apply to the Court of Protection for permission to take the relevant person’s case to the Court in connection with a matter relating to the giving or refusal of a standard or urgent authorisation (in the same way as any other third party can).
If the Relevant Person is subject to a Deprivation of Liberty authorisation then they are required to have an appointed representative. In the absence of this role then an IMCA can be instructed to meet the gap whilst another is appointed. An IMCA can also be instructed if the relevant person or their representative requests their assistance or a Supervisory Body feels that appointing one will ensure the relevant person’s rights are protected.
Since the implementation of DoLS the Department of Health has advised that the numbers of referrals for IMCAs to support both people under a Standard Authorisation and to support the Relevant Persons Representative are low. Best Interests Assessors should consider making these referrals following the granting of a Standard Authorisation.
11. The DoLS Assessment Process
On receipt of a DoLS Standard Authorisation a Best Interests Assessor will ascertain whether deprivation of liberty is occurring and if the assessment process is to be pursued. Assessments must be completed within 21 days for a Standard Authorisation. When an Urgent Authorisation has been completed the assessment process must be completed before this expires. This will be a maximum of seven days unless an extension of the Urgent Authorisation has been agreed.
There are six DoLS assessments which are:
- Age assessment;
- No refusals assessment;
- Mental capacity assessment;
- Mental health assessment;
- Eligibility assessment;
- Best interests assessment.
Best Interests Assessors will be instructed to coordinate the assessment process on behalf of the Council and the CCG. There must be a minimum of two assessors (if all assessments are completed) and the Best Interests Assessor and mental health assessor must be different.
Best Interests Assessors must not be directly involved in the care or treatment of the person they are assessing nor in decisions about their care. Additionally they should not be in a line management relationship with the professional proposing the deprivation of liberty or a mental health assessor. Additionally the Supervisory Body should be mindful that the Best Interests Assessor has appropriate experience of the service user group and any cultural or communication needs which need consideration.
It is envisaged that the Best Interests Assessor will complete the age, no refusal, mental capacity and Best Interest’s assessments. If the Best Interests Assessor is an Approved Mental Health Professional then they can undertake the eligibility assessment.
If the Best Interests Assessor is not an Approved Mental Health Professional then the eligibility assessment will be completed by the mental health assessor (Section 12 MHA Approved Doctor) in addition to the mental health assessment.
12. Professional Standards
The DoLS Regulations requires Local Authorities and Clinical Commissioning Groups to appoint sufficient Best Interests Assessors to meet local needs. S12 clinicians may, as appropriate, will be provided by the mental health trusts and Hull City Council will use independent mental health assessors.
It is expected that Best Interests Assessors will maintain an appropriate level of awareness and expertise in order to continue to practice and will meet the standards required of both their employing organisation and their professional body when carrying out the role. Refresher training will be available to all BIAS and Sec 12 Doc clinicians within the City of Hull.
13. The Best Interests Assessment
Once the Best Interests Assessor has established deprivation is occurring or is likely to occur a full assessment should be started. The Best Interests Assessor must:
- Take into account the views of interested persons, carers, anyone interested in the person’s welfare, donee’s or deputies;
- Names of all those people who have been consulted;
- The views of the mental health assessor;
- State the maximum authorisation period of the authorisation-not longer than 12 months. Whilst considering the length of the authorisation Best Interests Assessors should take into account the time required for specific care planning tasks which may be relevant for a change of placement, discharge from hospital or to reduce the change of a DoLS occurring / and or as a result of the DoLS assessment and conditions attached to the Standard Authorisation. Additionally Best Interests Assessor should consider whether repeated short authorisations and subsequent repeated assessment processes are in the Relevant Persons Best Interests;
- Provide a report which either supports or declines deprivation with reasons;
- Recommend conditions but they must directly relate to the issue of deprivation of liberty. Can relate to contact, culture and avoiding deprivation in the future;
- Recommend someone to be the Relevant Person’s Representative.
The Department of Health in their 2010 DoLS report gave further guidance relating to the setting of conditions for the Standard Authorisation in addition to what can be found in the DoLS Code of Practice.
“There is evidence that the Code’s guidance in relation to the setting of conditions is not being adhered to. Paragraphs 4.74.and 4.75 of the Deprivation of Liberty Safeguards supplement to the Mental Capacity Act 2005 Code of Practice state:
The best interests assessor may recommend that conditions should be attached to the authorisation. For example, they may make recommendations around contact issues, issues relevant to the person’s culture or other major issues related to the deprivation of liberty, which – if not dealt with – would mean that the deprivation of liberty would cease to be in the person’s best interests. The best interests assessor may also recommend conditions in order to work towards avoiding deprivation of liberty in future. But it is not the best interests assessor’s role to specify conditions that do not directly relate to the issue of deprivation of liberty.
Conditions should not be a substitute for a properly constructed care plan. In recommending conditions, best interests assessors should aim to impose the minimum necessary constraints, so that they do not unnecessarily prevent or inhibit the staff of the hospital or care home from responding appropriately to the person’s needs, whether they remain the same or vary over time. It would be good practice for the best interests assessor to discuss any proposed conditions with the relevant personnel at the home or hospital before finalising the assessment, and to make clear in their report whether the rejection or variation of recommended conditions by the supervisory body would significantly affect the other conclusions they have reached.”
Best Interests assessors need to recommend and supervisory bodies to set conditions that reflect the advice in the supplement to the Code and not, as has been reported to the Department, recommend and set conditions that otherwise could have been achieved by effective care plans.”
In addition Best Interests Assessors need to be cautious that conditions recommended and agreed by the Supervisory Body do not incur a financial cost for the Managing Authority without discussion or place contractual arrangements on a third party organisation without their consent.
Best Interests Assessors are advised to be mindful of the relationship between DoLS assessments / process and longer term care planning. Whilst the DoLS assessment is a stand alone assessment to determine whether the relevant person’s care meets the criteria for the safeguards at that particular time and is in their Best Interests there is a clear relationship between the outcome and an on-going care plan. This is particularly evident in the length of the authorisation and the conditions; where both issues may depend on actions taken outside of the DoLS process by for example an assessment team or a hospital in-patient multi-disciplinary team.
14. Eligibility Assessment
Since the Deprivation of Liberty Safeguards have in use there has been updated case law in a number of areas. One of those which has gained the most attention and added further clarity has been around the Eligibility Assessment. The GJ judgement in 2009 was a key judgement for hospitals (both acute and psychiatric) around their use of DoLS.
The judgement clarified that:
- The MHA has primacy over the MCA (Case GJ 2009);
- If the MHA can be used to detain a person it MUST be used;
- If a patient could be detained under the MHA there are ineligible for DoLS.
Questions that hospitals would need to consider prior to requesting a DoLS assessment:
- Does the patient need treatment for mental disorder?
- Is the proposed DoLS to allow this treatment?
- Does this treatment need to be in hospital?
- Are they objecting both passively or actively to this treatment?
- Do they meet the criteria for MHA?
- If all YES not eligible for DoLS- must use MHA;
- If any NO can use DoLS (if other criteria met).
Best Interests Assessors are recommended to discuss this assessment with both the hospital requesting the authorisation and the Eligibility Assessor if different from the Best Interests Assessor.
15. Authorisation Process
If all the assessments conclude that the relevant person meets the requirements for authorisation and all the assessments have been completed and passed to the Supervisory Body then a Standard Authorisation must be agreed. The Supervisory Body has to agree the conditions and length of authorisation.
The nominated signatories of the Supervisory Body must be approached in a timely manner to complete the required paperwork. Consideration must be given to data protection legislation in the electronic transfer of patient information and a personal meeting to discuss the case and complete the Supervisory Body forms should be considered if practicable within the statutory timeframes.
The Supervisory Body must set the period of the authorisation which may not be longer than the recommended by the Best Interests Assessments and it cannot exceed 12 months. Consideration should be given to ensuring the length of the authorisation is proportionate to any care planning actions required within the length of the authorisation and the impact on the relevant person of being subjected to repeated assessments over a relatively short period of time.
It is recommended that the Standard Authorisation or Standard Authorisation Not Granted forms are completed by the authorised signatory either typed or by hand following discussion with the Best Interests Assessor, DoLS Lead and considering the written assessments. It is not good practice for the Supervisory Bodies forms to be pre-prepared as advised by the Neary judgement.
The Supervisory Body cannot give an authorisation if one of the assessments requirements has not been fulfilled and the assessment process should stop immediately. In this case the Supervisory Body must still complete Form 13: Standard Authorisation Not Granted.
The Supervisory Body may attach conditions to the authorisation and must consider those recommended by the Best Interests Assessor. If the Supervisory Body does not attach the recommended conditions this must be discussed with the Best Interests Assessor in case the variation or rejection alters their conclusion and recommendation around deprivation of liberty.
A Standard Authorisation cannot be transferred to another hospital or care home and an application for a new Standard Authorisation must be made before a move takes place.
If a request for an authorisation is turned down then the Managing Authority will need to ensure that an unauthorised deprivation of liberty is not taking place and alter the care accordingly.
The Council and Health Commissioners will need to ensure that that care can be provided and purchased in a way that makes it possible for Managing Authorities to avoid deprivation of liberty when a request for a Standard Authorisation is turned down.
16. The Role of the Relevant Person’s Representative
Supervisory Bodies must appoint the Relevant Person’s Representative as soon as possible and practical to represent the person who has been deprived of their liberty.
The role is to:
- Maintain contact with the relevant person;
- To represent and support the relevant person in all matters relating to the Deprivation of Liberty Safeguards including triggering a review, using an organisation’s complaints procedure or making an application to the Court of Protection.
This role is crucial to the deprivation of liberty process and allows the Relevant Person to be represented and supported in a manner that is independent of the care provider and the Supervisory Body.
There are eligibility criteria attached the position of Representative which include:
- 18 years of age or over;
- Able to keep in contact with the Relevant Person;
- Willing to be appointed.
The Best Interests Assessor should start to identify the Representative during the assessment process and discuss the role as part of this process.
The Best Interests Assessor should establish whether the Relevant Person has the capacity to select their own representative and invite them to do so. If the Relevant Person does have Capacity and selects an individual then the Best Interest Assessor must appoint them to the role.
If the Relevant Person lacks capacity and there is a donee or deputy with relevant authority they may select the person appointed to the role and the Best Interests Assessor must recommend that person is appointed.
The Best Interests Assessor must not select a representative where the Relevant Person, if they have capacity, or a donee or deputy acting within their role states that they are not content with that selection.
The Best Interests Assessor must establish eligibility of the person to be appointed. If there is no person available to take on this role then the Supervisory Body must appoint a professional to take on this role.
The Representative must confirm in writing that they are willing to accept the appointment on the prescribed Form 25 – Appointment of a Representative.
The Representative must be able to have face-to-face contact with the Relevant Person. Managing Authorities should keep records on the frequency of visits and appropriate contact. Supervisory Bodies can terminate the appointment if required but must be sure to exercise discretion and treat each case on its merits.
If there is a gap between the authorisation of the deprivation and the appointment of a Representative then the Supervisory Body must appoint at IMCA for this period.
Both the Relevant Person deprived of their liberty and their representative have a statutory right to an IMCA if they request one. In the Department of Health’s 2010 DoLS report a national under referring of IMCAs for this role was noted. Best Interests Assessors are advised to consider whether appointing an IMCA would be of benefit to the Relevant Person and their RPR in supporting their role. Both the Relevant Person and their Representative must be informed about the IMCA service and their right of access.
The Department of Health’s report identified that family members were not being selected as Relevant Persons Representatives because they were not supportive of the deprivation of liberty. The Department of Health suggested this is not grounds alone for not selecting them for the role.
The Best Interests Assessors who has undertaken the Best Interests Assessment will if practicable complete the process for appointing a Relevant Person’s Representative and ensure all the required forms have been completed and added to the Relevant Person’s file.
It has been agreed that in Hull the Best Interests Assessor can sign the form appointing the Relevant Person’s Representative on behalf of the Supervisory Body.
Best Interests Assessors should consider sending Relevant Persons Representatives information regarding the role.
Please note: In Re KT & others, which was heard before the Court of Protection, Mr Justice Charles approved the use of general visitors to act as Rule 3A Representatives when there is no one else – such as family members or advocates – available to act for the person who is the subject of the proceedings. General visitors are commissioned by the Court of Protection to visit the person and others involved in the case, and report back their findings. Appointing a general visitor safeguards the rights of the person in the proceedings.
Over 300 such cases currently with the Court of Protection could have their stay lifted with the appointment of such a court visitor, if there are no other Rule 3A Representatives available. This should clear the backlog of cases before the Court.
17. Reviews of Deprivation of Liberty Authorisations
When someone is deprived of their liberty and a Standard Authorisation granted the Managing Authority has a duty to monitor the case and to ascertain whether the Relevant Person’s needs have changed and therefore might no longer meet the criteria for deprivation of liberty.
If a review is requested by the Relevant Person, their Representative or the Managing Authority the Supervisory Body must carry one out.
There are statutory grounds for review and these are:
- The Relevant Person no longer meets the age, no refusals, mental capacity, mental health or Best Interests requirements;
- The Relevant Person no longer meets the eligibility requirement because they object to receiving mental health treatment in hospital and meet the criteria for an application for Section 2 or 3 of the Mental Health Act 1983;
- There has been a change in the Relevant Person’s situation and the conditions attached require changing and the situation needs a review;
- The reasons the persons now meets the qualifying requirements are different from those given at the time the authorisation was granted.
The Supervisory Body must tell the Relevant Person, their Representative and Managing Authority if they are going to carry out a review.
Deprivation of liberty can be ended before a formal review. Although an authorisation permits deprivation it does not mean that deprivation must take place where circumstances no longer require it. In these circumstances the Managing Authority should apply for a review.
When a Supervisory Body receives a request for a review it must decide which of the qualifying requirements need to be reviewed.
If none of the qualifying requirements need to be reviewed then no further action is necessary.
If certain elements of the DoLS process do require an assessment then the standard assessment procedure should be followed.
When a decision is made that the Best Interests assessment should be reviewed solely because the conditions attached to the authorisation need to be changed and there is little evidence of a significant change in the overall circumstances there is no need for a full Best Interests reassessment. The Supervisory Body can simply vary the conditions attached to the authorisation as appropriate. If the review relates to any other requirements or there is a substantial change then new assessments must be obtained. Best practice would suggest that a fresh Best Interests Assessment is undertaken and to date this is local practice. This is not a mandatory activity and must be a proportionate decision.
If the requirements are not met following a review then the authorisation is terminated immediately and written notice will be given by the Supervisory Body. There are prescribed forms for the review purpose – Forms 19-22.
Standard Authorisations can be suspended if the eligibility requirement is not met for a short period of time other than the Relevant Person is objecting to mental health treatment in hospital. If the Relevant Person is detained under the Mental Health Act the authorisation can be suspended for a period of up to 28 days.
It is the responsibility of the Managing Authority to request a further Standard Authorisation if they feel the Relevant Person still needs to be deprived of their liberty. The Managing Authority must be mindful to apply prior to the existing authorisation expiring but not too far in advance for the assessments to be rendered invalid. Local practice is to take an assertive approach to managing on-going Standard Authorisations in conjunction with Managing Authorities. All Managing Authorities are contacted well in advance of the expiry date of the existing Standard Authorisation to establish whether a further Standard Authorisation is required. All current Standard Authorisations will be reviewed by the Supervisory Body regardless of whether the Managing Authority feels a further authorisation is necessary.
When the authorisation ends the Supervisory Body must inform all parties in writing by circulating the required forms.
The Best Interest Assessor managing the review process will be expected to complete the relevant forms and paperwork and ensure they are distributed accordingly to the relevant parties.
If a Relevant Person, a relative, friend, carer or third party such as an Inspector or Advocate believe that a person is being deprived of their liberty without an authorisation in place then they should draw this to the attention of the Managing Authority. They must ask the Managing Authority to apply for an authorisation or change the care regime within 24 hours.
Managing Authorities can resolve these matters without the need for an authorisation by making adjustments that avoid deprivation of liberty but if they cannot then they should submit a request for a Standard Authorisation and complete an Urgent Authorisation as required.
If the Managing Authority does not apply for an authorisation within a reasonable time period then the concerned person can raise the matter with the Supervisory Body to decide if an unauthorised deprivation of liberty is taking place.
In these circumstances the Supervisory Body must request a Best Interests assessment to consider whether deprivation of liberty is occurring. The assessment does not need to take place if the review is frivolous or vexatious, where repeated requests are received, when a very recent assessment has been carried out or when the question of deprivation has been decided and there has been no change in circumstances.
The Supervisory Body must inform all parties if it has been asked to assess whether an unauthorised deprivation of liberty is taking place and whether it will be undertaking an assessment.
If a person contacts the Supervisory Body about an unauthorised deprivation of liberty then they should arrange a preliminary assessment to ascertain whether deprivation is occurring and request that the Managing Authority requests a Standard Authorisation. If the Managing Authority does not request a Standard Authorisation and the matter is unresolved then the situation must be treated like an unauthorised deprivation of liberty. This assessment must be carried out within seven days. It is to establish whether an authorised deprivation is occurring. If the assessment concludes that a deprivation of liberty is taking place then the full assessment process should take place including the issuing of an Urgent Authorisation if applicable.
19. How Will the DoLS be Monitored?
The Care Quality Commission will monitor the safeguards for all participants in the DoLS process.
20. Administrative Systems
The DoLS lead will maintain and circulate a rota of Best Interest Assessors. A flexible approach from Best Interests Assessors and assessment teams is expected to support a statutory Adult Social Care assessment duty within the required timescales.
The DoLS lead will maintain performance information and submit to relevant organisations as required.
The DoLS lead will ensure files are complete and stored appropriately. There is an expectation that paper files are kept for DoLS. These will be filed within the Adult Social Care archiving system at Barts House as needed.
21. DoLS and Safeguarding Adults
Consideration should always be given as to whether the nature of the concerns referred or identified through the DoLS Best Interests Assessment process should be investigated under the Hull Safeguarding Adults Partnership Board Procedures.
It is the responsibility of the Best Interests Assessor to raise a safeguarding alert if it appears there are safeguarding issues that emerge in the course of the DoLS assessment process.
Where an investigation under the Safeguarding Adults Procedures is commenced, there should be clear decision making as to how the DoLS assessment and other processes will be co-ordinated within the adults safeguarding Investigation process.
In April 2010 the Department of Health produced a report pertaining to the use of the safeguards and highlighted some emerging practice issues which closely relate to safeguarding adults at risk practice.
Sometimes the MCA DoLS authorisation is the culmination of a lengthy dispute between the family and an NHS Trust or Local Authority about where the person should live. Paragraph 8.28 of the Mental Capacity Act 2005 Code of Practice states that a “court decision might be appropriate” where “there is a major disagreement regarding a serious decision (for example, about where a person who lacks capacity to decide for themselves should live)“. The DoH was clear in their guidance that such disputes, which cannot be otherwise resolved, will require the “last resort” determination of the Court rather than being resolved via the Safeguards. Therefore consideration should be given to seeking timely legal advice and considering an application to the Court of Protection for directions.
Safeguarding teams will be required, at times, to consider matters of contact between a person lacking Capacity and somebody that they may be at risk of harm or abuse from.
The DoLS Code of Practice in 4.74 recognises contact might be an issue in the setting of conditions,”The best interests assessor may recommend that conditions should be attached to the authorisation. For example, they may make recommendations around contact issues“. This could include conditions that allow or encourage contact as well as conditions that limit or supervise contact.
It is acknowledged there may be a short-term need to rely on the conditions of an authorisation to manage no contact in such cases but paragraph 8.28 of the Mental Capacity Act 2005 Code of Practice states “a court decision might be appropriate” where “someone suspects that a person who lacks Capacity to make decisions to protect themselves is at risk of harm or abuse from a named individual (the court could stop that individual contacting the person who lacks Capacity).”
This suggests that the Court should be the arbiter for matters of no contact and that an authorisation under MCA DoLS, other than as a very short-term measure, should not be relied upon to manage no contact cases. Local authorities and health commissioners seeking authority to prevent contact are advised by the Code that “a court decision might be appropriate” in such circumstances. Therefore assessment teams are advised to consider taking legal advice as soon as possible when dealing with issues around contact. They are advised that the DoLS assessment will not necessarily resolve these issues, any authorisations granted are likely to be short term and that an appropriate subjectivity and distance is maintained by the DoLS assessor from the safeguarding work as advised following the Neary judgement.
The DoH state that “case law judgements, to date, indicate that preventing contact with somebody who presents a risk of harm or abuse to a person lacking Capacity does not on its own amount to a deprivation of their liberty. An authorisation should not therefore be recommended nor granted on these grounds alone.” Again assessment teams are advised to seek legal advice and consider whether an application to the Court of Protection is warranted.
On an occasion when a dispute over residence or contact if not addressed by a DoLS authorisation and / or any of its conditions fails to stop the continuing or new opposition of a family member, a dispute cannot be considered to have been resolved. Cases which are subject to dispute and cannot be otherwise resolved will require the last resort determination of the Court of Protection, and should not be viewed as having been resolved via the MCA DoLS process.
22. Legal Advice
If Best Interests Assessors require legal advice when operating in this role in the first instance they should approach the DoLS Lead Officer, Adult Safeguarding Team for advice and case discussion.