1. Summary
The Deprivation of Liberty Safeguards (DoLS) were introduced to protect the Human Rights (Article 5: Right to liberty and security) of vulnerable people who lack Capacity to Consent to care or treatment in a hospital or registered care home, when their own Best Interests involve receiving care that amounts to Deprivation of Liberty as defined by the European Court of Human Rights.
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 by the Plymouth DoLS Office.
Local authorities have responsibilities under the safeguards to carry out the functions of the Supervisory Body as detailed in the Deprivation of Liberty Safeguards 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 that is self-funded residential care.
Local authorities have a responsibility to protect the human rights of all vulnerable people within Plymouth, particularly in reference to these safeguards, those who may be at risk of Deprivation of Liberty, that is 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.
2. Identifying Deprivation of Liberty
In March 2014, the Supreme Court issued a judgment to clarify what constitutes a Deprivation of Liberty and what factors should be taken into account when considering whether a person is deprived of their liberty.
The Supreme Court indicated that the two key questions to ask are:
- Is the person free to leave? and
- Is the person under continuous supervision and control?
When considering whether a person is deprived of their liberty, it is not relevant to consider:
- Whether the person has made an attempt to leave;
- Whether the person is content with the arrangement;
- Whether the person objects to the arrangement;
- The purpose of the restrictions;
- Whether any person with similar needs would be subject to similar restrictions.
According to the European Court of Human Rights, to decide whether a Care Plan involves deprivation of liberty, “the starting-point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the restrictions in question.’ (ECHR, October 2004, HL v the United Kingdom).
Further guidance on how to identify a deprivation of liberty was published by the Law Society.
3. Care Homes and Hospital Settings
It is the responsibility of the care home manager or hospital to decide whether the care required amounts to deprivation of liberty. If so, they must apply for an authorisation or reduce the restrictions so that deprivation of liberty is avoided. This is not necessary if the person has mental capacity to consent to their care arrangements.
DoLS authorisations will only be granted if:
- It is in a person’s own Best Interests to protect them from Harm;
- It is a proportionate response to the likelihood and seriousness of the Harm; AND
- There is no less restrictive alternative.
3.1 Requesting an Authorisation
Care homes and hospital wards should request an authorisation by submitting the appropriate forms to the Local Authority DOLS office.
They may also grant themselves an Urgent Authorisation for up to 7 days, but must notify the DoLS office and apply for a standard authorisation at the same time.
3.2 DOLS Assessment Process
Before a local authority can grant an authorisation, at least two separate assessors must carry out the following:
- Mental health assessment - to confirm whether the person has an impairment/disturbance in the mind or brain;
- Eligibility assessment - to confirm the person’s existing or potential status under the Mental Health Act, and whether it would conflict with a DoLS authorisation;
- Mental Capacity assessment - carried out by either the Mental Health or Best Interest Assessor to determine the person’s Capacity to Consent to the care proposed;
- Best interest assessment - to confirm whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s Best Interest. They will also recommend, how long the authorisation should last and who should act as a person’s representative throughout the period of authorisation;
- Age assessment - to confirm the person is at least 18 years of age;
- No Refusals assessment - to confirm whether there is any valid advanced decision which would conflict with the authorisation, or a person with a valid and registered lasting power of attorney with authority over welfare decisions.
An IMCA (Independent Mental Capacity Advocate) may also be appointed during the assessment process if required.
If any of the qualifying requirements are not met, the authorisation cannot be granted.
An authorisation can be granted for a maximum of 12 months, but will usually be agreed for a shorter time period as appropriate for the individual concerned.
3.3 Role of the Person’s Representative
Everyone who is subject to an authorisation will be appointed a representative. They must maintain face to face contact with the person and represent and support them in all matters relating to the Deprivation of Liberty Safeguards, including, if appropriate, requesting a review, or applying to the Court of Protection to present a challenge.
The representative has the right to request the advice and support of an IMCA.
If there is no family member, friend, or informal carer suitable to be the person’s representative, the DoLS office will appoint a paid representative through its contract with Plymouth Highbury Trust.
The name of the person’s representative should be recorded in the person’s health and social care records.
3.4 Reviews
It is the responsibility of the care home or hospital ward to monitor and review the person’s care needs on a regular basis, and report any change in need or circumstances that would affect the deprivation of liberty authorisation or any attached conditions.
There care home or hospital must request a DoLS review if:
- The relevant person no longer meets any qualifying requirements;
- The reasons the person meets the qualifying requirements have changed;
- Because of a change in the person’s situation, it would be appropriate to add, amend or delete a condition placed on the authorisation.
The person or their representative may also request a DoLS review at any time.
The DoLS Service will commission assessors to carry out a review of an authorisation when statutory conditions are met. Statutory DoLS reviews will not replace health or social care reviews.
3.5 Alerting unlawful Deprivation of Liberty in Care Homes and Hospitals
If a person (professional or otherwise) suspects unauthorised deprivation of liberty, they should discuss it with the care home manager/hospital ward manager.
If the care home/hospital agrees that the Care Plan involves deprivation of liberty, they should be encouraged to make a request for authorisation.
All parties should be satisfied that the Care Plan is the least restrictive option available to keep the person safe, and that it is in the person’s Best Interest.
If the care home does not agree to make a request for a DoLS authorisation, the care manager/coordinator can then approach the DoLS office to discuss the situation and report the unlawful deprivation.
3.6 DOLS and Safeguarding Adults Concerns
Deprivation of Liberty can be in a person’s Best Interest if it is necessary to protect the person from Harm, and is proportionate to the risk of Harm. To be lawful, it needs to be authorised so the person has access to the safeguards and is appropriately represented throughout the authorisation.
If a third party (that is not the care provider) contacts the DoLS office to report unlawful deprivation of liberty, it is not necessary to also make a Safeguarding Adults Concern.
A Safeguarding Adults Concern may be appropriate if there is also an allegation or concern of abuse, Harm or Neglect. If so, Part 2: Safeguarding Framework - should be followed.
3.7 Working with DOLS Best Interest Assessors
Best Interest Assessors and the DoLS Service will not, at any point, have responsibility for care planning or care management/coordination.
The DoLS Code of Practice points out that there is a particular need for care management / coordination if a Best Interest Assessor finds a service user / patient is being deprived of their liberty under their current Care Plan, but that Care Plan is not seen to be in their Best Interest and the deprivation is not authorised. The care home / hospital ward needs to work with the care manager immediately to reduce restraint / restriction and ensure the person is not unlawfully deprived of their liberty.
The Best Interest Assessor’s report will explain their conclusion and aim to make useful suggestions to commissioners and providers in determining future action including recommending alternative approach to treatment or care which would avoid deprivation of liberty. The Best Interest Assessor will discuss the possibility of any suggested alternatives with the providers of care during the DoLS assessment. This report should be kept on the person’s file.
The recommendations of the Best Interest Assessor should not be seen as a commitment or agreement to additional resources being provided by the commissioning agency. Any additional resources which are required should be requested by the care provider and presented to the relevant funding panel according to existing arrangements and procedures.
The care home/hospital need to record the steps they have taken to ensure the unauthorised deprivation of liberty does not continue. The Best Interest Assessor’s report should then be added to the person's file/Care Plan.
The care manager will be asked to complete a review of the person’s needs and work with the managing authority to propose an alternate Care Plan. If the Care Plan has funding implications, the care manager will present an application to the relevant funding panel or responsible commissioner.
After an appropriate interval (no longer than one month) the DoLS office may arrange for a professional who has been trained to undertake Best Interest assessments to complete an independent review of the person’s Care Plan on behalf of the local authority, to confirm that there is no longer a deprivation of liberty. If deprivation of liberty has continued unauthorised, the DoLS office will consider whether to report a safeguarding concern.
If this is in the case of a proposed admission to residential care, that admission will need to be delayed until an alternative Care Plan is proposed that will not involve deprivation of liberty.
If the person is to be discharged from hospital, and considerations about potential deprivation of liberty are causing or contributing to delay in discharge planning, this should be discussed with the DoLS Office or the Safeguarding Adults Manager at the earliest opportunity.
3.8 Deprivation of Liberty in Supported Living or Other Community Settings
Where a person is deprived of their liberty in a supported living placement or any community setting other than a registered care home or hospital, lawful authority can only be obtained by order of the Court of Protection. Anyone who is concerned about this should contact the care provider in the first instance. Where the care provider has identified that a person is deprived of their liberty, they should discuss this with the commissioning authority, whether health or social care who have arranged the care provision for that person. The commissioning authority should then take steps, including legal advice to determine whether a court application is required.
N.B. It is not possible to authorise a deprivation of liberty in supported living or other community settings by applying to the Local Authority DOLS office.