Deprivation of Liberty Safeguards

This chapter was added to the APPP in May 2020.

1. Introduction

Although the Mental Capacity Act and Deprivation of Liberty Safeguards were not amended by the Coronavirus Act, on April 7th 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. This policy reflects that guidance and is only valid during the COVID-19 pandemic. It applies only until the DHSC guidance is withdrawn. The key principles of the MCA and the safeguards provided by DoLS still apply.

2. Why has the DHSC Guidance Changed?

During the pandemic, It may be necessary to change the usual care and treatment arrangements of somebody who lacks the capacity to consent to such changes in order to, for example, access better facilities or to treat or protect them from COVID infection, In many cases, changes to a person’s care or treatment will not constitute a new deprivation of liberty, and a new DoLS authorisation will not be required. A flowchart to inform this decision is attached to this policy and care and treatment should continue to be provided in the person’s best interests.

All decision makers are responsible for implementing the emerging government public health advice and so care and treatment arrangements may need to be adjusted to implement that advice. These may be more restrictive than they were, and may constitute a deprivation of liberty, in which case, DoLS authorisation must be sought.

3. When does an Application for DoLS Authorisation need to be made?

Prior to any decision being made on someone’s behalf, consent should be obtained on all aspects of care and treatment to which the person can consent.  If the person lacks capacity to provide consent, the decision maker should where necessary make a best interests decision under the MCA regarding the care or treatment that needs to be provided. The principles and process of best interest decision making continue to apply and must be followed. In some cases it will be sufficient to make a best interests decision to provide necessary care and treatment. In 2017, the Court of Appeal considered the case of R (Ferreira) v HM Senior Coroner for Inner South London and others This determined that where life-saving treatment is being provided in care homes or hospitals, this will not amount to a deprivation of liberty, as long as the treatment is the same as would normally be given to a person with capacity. This includes treatment to prevent the deterioration of a person with COVID-19 and means that, for example, someone who is unconscious, semi-conscious or with acute delirium, and needs life-saving treatment (for COVID-19 infection or anything else) can be treated based on a best interests decision However, If additional measures are being put in place for a person who lacks capacity when they are receiving life-saving treatment, for example to stop them from leaving the place of treatment, then the “acid test” set out in Cheshire West  should be considered. This is that the person is:

  • not free to leave the accommodation; and
  • under continuous supervision and control.

Subsequently, the Court of Appeal has commented that “not free to leave” means not free to leave that accommodation permanently

If the acid test is met then the person is deprived of their liberty and decision makers must determine how to proceed. The starting point should always be to consider whether the restrictions can be minimised or ended, so that the person will not be deprived of liberty. If this is not possible then the key principles to consider are:

(a) Does the person already have a DoLS authorisation, or for cases outside of a care home or hospital does the person have a Court Order? If so, then will the current authorisation cover the new arrangements? If it does, changes to the person’s arrangements for their care or treatment during this period will not constitute a new deprivation of liberty and the current authorisation will cover the new arrangements, but it may be appropriate to carry out a review.

b) Are the proposed arrangements more restrictive than the previous ones? If so, a review should be carried out.

(c) If the current authorisation does not cover the new arrangements, then a referral for a new authorisation should be made to the supervisory body to replace the existing authorisation. Alternatively, a referral to the Court of Protection may be required.

Decision-makers should always try to put in place new arrangements which are within the parameters of the authorisation or Order and should avoid putting more restrictive measure in place for a person unless absolutely necessary to prevent harm to that person. In addition, DoLS cannot be used if the arrangements are purely to prevent harm to others. If this is the case, The Public Health (Control of Disease) Act 1984 provides a legal basis to protect the public from threats arising from infectious disease and the health protection (coronavirus) regulations 2020 includes provision for a registered public health consultant to apply for a Part 2a order under section 45G of this Act in order to detain people known or suspected to have COVID. The Head of Service or Principal Social Worker should be asked to discuss the case with the Public Health Consultant.

4. Carrying out an Assessment

DoLS assessors should not visit care homes or hospitals unless a face-to-face visit is essential. Remote techniques should be used as far as possible, such as telephone or videocalls where appropriate to do so. Views should still be sought from those who are concerned for the person’s welfare such as family members, friends. Previous assessments can also be considered as relevant evidence to help inform the new assessments. During the pandemic, only the shortened form (attached) is needed to grant an urgent authorisation and request an extension to that urgent authorisation, from the supervisory body. This should be submitted as soon as is practically possible after the deprivation of liberty has been identified and started. The process for a standard authorisation should then be followed.

Appendix 1: When to Apply for a Deprivation of Liberty Authorisation Flowchart

Click here to view When to Apply for a Deprivation of Liberty Authorisation Flowchart

Appendix 2: Deprivation of Liberty Safeguards Urgent Authorisation Form – COVID-19

Click here to view Deprivation of Liberty Safeguards Urgent Authorisation Form – COVID-19