This article applies to residential care settings in England & Wales

In this fourth article in the series we’ll examine the Deprivation of Liberty Safeguards (DoLS) process in a bit more detail. Remember that this is a way to make previously unlawful practice legal – it is not a stick to beat you with. On the contrary the DoLS process protects everyone – including the care provider. So long as you follow the rules you will be safe.

The DoLS process is only relevant to residential or hospital based care.

As we have seen people have the right to liberty – to self-determination unless that right is removed by law. The subjective opinion of care providers not trained in human rights is not sufficient reason to take away a person’s right to liberty. There needs to be a proper process.

DoLS is that process. To understand it we need to define a few terms first:

Relevant person:     The service-user/resident

Relevant person’s representative:   The service/user’s advocate

Managing authority:    The hospital or care home

Supervisory body:     The local authority or the local PCT

Urgent authorisation:   Emergency ‘self’ authorisation

Standard authorisation:     Authorisation from supervisory body

IMCA :   State appointed advocate

BIA :     Best interests assessor

Not everything is a DoLS issue. Many, many routine practices for people who lack the capacity to decide can be carried out under the basic Mental Capacity Act and workers are protected from prosecution under part 5 of that Act.

Nobody wants the social care system to grind to a halt and so staff are quite able to perform basic care without having to worry about masses of paperwork. In many cases all the law requires is that they can ‘point to’ the reasons why they considered their actions to be proportionate and in the individual’s best interests.

Only if we get into actual deprivation of liberty (see the third article in this series) do we need DoLS authorisation.

The moment you think it is necessary to deprive someone of their liberty you must complete the ‘urgent authorisation’ form and send it to the supervisory body. In most cases the supervisory body for hospitals will be the primary care trust (PCT) and for residential homes the supervisory body will be the local authority (LA). Some areas have made local agreements to change this though so it’s always useful to check. It should be vey easy to find out. Your LA’s Adult Protection team is very likely to know as will the PCT’s Safeguarding department.

The urgent authorisation is your way of granting yourself permission to deprive a person of their liberty for up to 7 days. This is not the end of the story though. The 7 day period is simply to allow time for the supervisory body to arrange for the appropriate assessments to take place.

So – the very next thing you do, having sent the urgent authorisation form is follow it up with the standard authorisation application form. It’s important that this is done without delay because the clock is ticking from the moment the urgent authorisation form is submitted.

The supervisory body will perform 6 assessments. These are….

• Age requirement

The relevant person must be aged 18 or over. This is because there are already legal principles for establishing capacity and best interests for children and young people and these will be more appropriate than DoLS for residents aged 17 or below.

• Capacity requirement

The relevant person must lack capacity to decide for themselves. Otherwise they make their own decision. Capacity is assessed according to the criteria outlines in earlier in this series of handouts.

• No refusals requirement

The DoLS process is part of the Mental Capacity Act and so the rest of the Act continues to apply. If the intervention you propose has been refused under either a capacitous refusal, and Advance Decision, a Lasting Power of Attorney or via a Court Appointed Deputy or Court Order then you cannot be granted a DoLS authorisation.

• Mental health requirement

This reflects the Winterwerp vs The Netherlands case in the European court of Human Rights which states that a person may not be deprived of their liberty unless they have a mental disorder, the disorder is serious enough to warrant deprivation and the disorder is currently creating difficulties. So in order ot comply with European Human Rights law mental disorder must be established. This is defined in UK law as a ‘disorder of mind’. The Mental Health Assessment must be performed by a suitably qualified professional who is able to diagnose ‘disorders of mind’.

• Eligibility requirement

There is no reason to say the person is not eligible. For example the intervention you propose would not be prevented by another legal process such as the provisions of a Supervised Community Treatment Order under the Mental Health Act for example.

• Best interests requirement

This is perhaps the ‘chunkiest’ of the 6 assessments. It is performed by a specially trained Best Interests Assessor who will consider the circumstances in the light of the Best Interests guidance in the Mental Capacity Act. It is the best interests assessor who decides whether or not to authorise the DoL and if so for how long. Authorisations can be granted for up to a year at a time and are renewable indefinitely following reassessment.

A relevant person’s representative is appointed by the supervisory body (often a relative) and it is their right to access information, to be involved in appeals processes etc and to work with the supervisory body and the managing authority on behalf of the relevant person.

An IMCA (Independent Mental Capacity Advocate) may also be appointed to assist in the decision-making process. The IMCA service is a formal advocacy service created by the Mental Capacity Act to speak on behalf of people who lack capacity and for whom there is nobody suitable to advocate on their behalf.

If the authorisation is granted then you can continue to deprive the person of their liberty in their best interests without fear of prosecution. If however the authorisation is not granted then you must find another way to manage the situation.

It is likely in that case that the provisions of the wider Mental Capacity Act will provide you with some solutions. For that reason it is important that care providers understand the provisions both of the original Mental Capacity Act and DoLS in order to remain within the law.