Contents
1. Introduction
1.1 This policy and practice guidance relates solely to hospital and care home applications. The Deprivation of Liberty Safeguards (DoLS) 2007 is an amendment to the Mental Capacity Act (MCA) 2005. The Deprivation of Liberty Safeguards Code of Practice is a supplement to the overarching Mental Capacity Act 2005 Code of Practice. They provide a legal framework to protect those who may lack the capacity to consent to the arrangements for their treatment or care and where levels of restriction or restraint used in delivering that care are so extensive as to be depriving the person of their liberty. These Codes of Practice should remain the main point of reference for staff working with Deprivation of Liberty issues in Hospitals and Care homes.
1.2 The Codes of practice can be accessed here: Deprivation of Liberty Safeguards.
2. Background Information
2.1 On 5 October 2004, the European Court of Human Rights (ECtHR) produced its judgment in the case of HL v the United Kingdom (commonly referred to as the ‘Bournewood’ judgment). The case relates to a profoundly autistic man with a learning disability, who lacked the capacity to consent to or to refuse admission to hospital for treatment. The ECtHR held that he was deprived of his liberty when he was admitted, informally, to Bournewood Hospital.
2.2 The ECHR further held that:-
• The manner in which the man was deprived of liberty was not in accordance with ‘a procedure prescribed by law and was therefore in breach of Article 5(1) of the European Convention on Human Rights,
• There had been a contravention of Article 5(4) of the European Convention of Human Rights because the man was not able to apply to a court quickly to see if the Deprivation of Liberty Safeguards was lawful.
2.3 To prevent further similar breaches of the ECHR the MCA (2005) was amended to provide additional safeguards for people who:
• lack mental capacity to consent to their care or treatment
• whose care or treatment involves arrangements that have the effect of depriving them of their liberty within the meaning of Article 5 of the ECHR
• but who either are not, or cannot be, detained under the Mental Health Act
(1983).
2.4 These safeguards are known as the ‘Deprivation of Liberty Safeguards’, referred to throughout this document as DoLS.
3. Scope of policy
3.1 Deprivations of a person’s liberty can be authorised via two routes. Either
a) The Deprivation of Liberty Safeguards where the following criteria apply:
• Aged over 18
• Lack the capacity to consent to the arrangements for their care or treatment
• Are receiving care or treatment within a hospital or care home
• Are receiving care or treatment in circumstances that amount to a deprivation of liberty in order to protect them from harm and it appears to be in their best interests
• Have a mental disorder but their detention is not already authorised under the Mental Health Act (1983) or are inconsistent with an obligation placed on them under the Mental Health Act (1983).
or:
b) Via a s16 Welfare Order from the Court of Protection where the following criteria will apply:
• Aged 16 plus
• Lack the capacity to consent to the arrangements for their care or treatment
• Are receiving care or treatment imputable to the State, within their own home environment. (i.e. supported accommodation, residential school accommodation foster care arrangements etc.)
• Are receiving care or treatment in circumstances that amount to a deprivation of liberty in order to protect them from harm and it appears to be in their best interests
• Have a mental disorder but their detention is not already authorised under the Mental Health Act (1983) or are inconsistent with an obligation placed on them under the Mental Health Act (1983).
3.2 This is a corporate policy and procedure, which must be adhered to by all staff working in Devon and Torbay including staff in NHS and Social Care roles, specifically the DoLS service and associated directorates such as:
• Operations
• Commissioning
• Safeguarding Adults
• Corporate Governance
• Professional Practice
4. Aim of the policy
4.1 The aim of the policy is to ensure that people are able to live as free a life as possible in line with their assessed need for care and or treatment and to ensure that their independence is maximised within their capabilities. Any necessary restrictions and restraints are openly discussed and kept to an absolute minimum, to ensure that they are not in breach of Article 5 of the European Convention of Human Rights (ECHR).
4.2 It has been produced with a view to providing both the policy and practice guidance for Devon County Council and Torbay and South Devon NHS Foundation Trust staff who act either in the role of the Supervisory Body or Managing Authority or as commissioners of care or treatment.
4.3 The following principles will be adhered to by all those with a duty of care towards an individual who is, or may be deprived of their liberty:
- Staff will carry out their duty to ensure optimum care that meets the needs of the individual and protects their Human Rights.
- Staff at all levels will work collaboratively with colleagues across organisations, to ensure efficient and consistent working practices, to ensure timely and effective communication and information sharing and to maximise efficiency of resources.
- Staff will adhere both to the principles of the MCA (2005) and the DoLS at all times and refer to both Acts and their Codes of Practice whenever capacity, best interest and deprivation of liberty issues arise.
- Every effort will be made by those with a duty of care towards an individual to prevent deprivation of liberty. This includes both commissioners and providers of care.
- The dignity and wellbeing of the Relevant Person will be paramount at all times. A personalised approach will be taken that maximises freedom, minimises control and supports & encourages contacts with family, carers & friends.
- Staff will work in accordance with the principles of the General Data Protection Regulations when sharing information and recording only that data which is necessary.
- Staff will consider safeguarding within every aspect of their responsibilities. If any act or omission constitutes abuse, as defined by the Care Act (2014) staff must report this in accordance with policy and procedure.
- Staff will seek to engage anyone involved in caring for the Relevant Person, anyone named by them as a person to consult and anyone with an interest in the Relevant Person’s welfare, and ensure they are consulted in decision-making. If there is no one appropriate to consult with a referral to the Devon & Torbay Independent Mental Capacity Advocate (IMCA) Service should be made.
- Every effort should be made to resolve disputes surrounding a decision to deprive a person of their liberty locally and informally.
- Staff maintain succinct, systematic and accurate records, which demonstrate:
- Completed mental capacity assessments
- Full and applicable best interest decision making and processes.
- Consideration of less restrictive options and evidence to support why they have failed.
5. What are the Deprivation of Liberty Safeguards?
5.1 On the 19th March 2014, the Supreme Court defined the threshold ‘Acid Test’ upon which to determine whether a deprivation of liberty is taking place. The Supreme Court identified that a person is deprived of their liberty if:
- They lack the mental capacity to provide valid consent to being accommodated in the hospital, nursing home or care home for the purposes of receiving care and or treatment.
- The person is not free to leave and under continuous supervision and control
- The deprivation of liberty is imputable to the State.
6. Role of Legal Service within each Organisation
6.1 To manage all instruction to the Court of Protection in relation to Section 16 Welfare Orders, where it is deemed a person is deprived of their liberty and the Supervisory Body is legally unable to authorise the deprivation.
6.2 To action and respond to all challenges under section 21A.
6.3 The relevant Legal Team will direct staff as necessary.
7. Role of the Deprivation of Liberty Safeguards Operational Lead
7.1 The DoLS Operational Leads are responsible for the operational management of the DoLS procedure within prescribed legal timescales, including the commissioning of appropriately skilled assessors where necessary and effective communication with all relevant parties regarding assessment outcomes.
7.2 Development and review of internal policy, practice guidance and standard operational procedures to support implementation in practice.
7.3 Monitoring the number of appropriately trained and skilled Independent Mental Capacity Advocates (IMCA), Best Interest Assessors (BIA) and section 12 Mental Health Assessors (MHA) to ensure available resource is able to meet demand
7.4 Provide and report accurate information and statistics to the Organisation’s internal governance structure and external bodies such as the Department of Health (DoH), or the Care Quality Commission (CQC) when required.
7.5 Oversee the training strategy to ensure it is fit for purpose.
7.6 Develop systems and processes to provide up to date information and advice.
7.7 Provide supervision, support and guidance for BIA’s
7.8 Attend contract-monitoring processes
7.9 Attend local and regional DoLS groups and networks
7.10 Manage complaints, disputes, and challenges and disseminate all relevant learning outcomes to ensure continuous improvement in practice.
7.11 Escalate all identified risk associated with the MCA/DoLS legislation within the Organisation’s governance structure at the earliest possible stage.
8. Role of all staff in Managerial positions
8.1 Managers within each Organisation are responsible for the implementation of this policy within their department/team. They are responsible for ensuring all staff are aware of the policy guidelines.
8.2 Ensure all staff within their department/team have attended the MCA/DoLS training commensurate with their individual roles.
8.3 Discuss issues relating to MCA/DoLS within Supervision sessions.
8.4 Report any concerns or risks to their Line Managers and the DoLS team.
9. Role of all Operational staff
9.1 All staff should appraise themselves of the content of this policy.
9.2 Attend the MCA/DoLS training commensurate with their role.
9.3 Act within the framework of the policy when they believe there may be an unauthorised deprivation of a person’s liberty taking place.
9.4 Discuss issues relating to MCA/DoLS within Supervision sessions.
9.5 Report any concerns or risks to their Line Managers and the DoLS Service.
10. Framework for implementing Deprivation of Liberty Safeguards
10.1 The DoLS introduces the concepts of “Managing Authority” and “Supervisory Body” – working together; they are responsible for the DoLS process.
11. Supervisory Body
11.1 This is the Local Authority that receives the applications for authorisations for Deprivation of Liberty Safeguards. It has the duty to arrange the required assessments and consider whether the criteria for a Deprivation of Liberty Safeguards authorisation are met. For the purpose of this policy, The Supervisory Body will be either Devon County Council or Torbay Local Authority dependent on where the person is ordinarily resident.
11.2 In situations where the person lacking capacity is of no fixed abode, the Supervisory Body will be the Local Authority where the care home or hospital which the person is currently resident is situated.
12. Key responsibilities of the Supervisory Body
12.1 To co-ordinate a dedicated Deprivation of Liberty Safeguards Service to undertake the work related to deprivation of liberty in non-community/domestic settings
12.2 To ensure there is a clear referral pathway for all Managing Authorities for all issues relating to DoLS.
12.3 To recruit assessors that have the necessary skills, qualifications and experience as outlined in the DoLS Code of Practice
12.4 To ensure there are sufficient numbers of assessors to undertake the volume of assessments required.
12.5 To ensure all staff working as assessors or in any capacity within the DoLS Service receive adequate training to perform their role.
12.6 To offer and deliver training in Deprivation of Liberty Safeguards to staff working within the organisation
12.7 To have overall responsibility for granting or refusing authorisation’s under the Deprivation of Liberty Safeguards.
12.8 When granting authorisation under the Deprivation of Liberty Safeguards to specify the duration of the authorisation which cannot exceed either the period of time stated by the Best Interest Assessor (BIA) or 12 months.
12.9 To attach appropriate conditions to the authorisation and make recommendations based on the best interests of the relevant person.
12.10 To receive applications from Managing Authorities for standard authorisation’s of Deprivation of Liberty and to respond to applications within the prescribed timescales.
12.11 Where appropriate to commission an Independent Mental Capacity Advocate (IMCA)
12.12 To commission the required assessments of the relevant person to ascertain whether or not they meet the qualifying requirements for a standard authorisation to be given.
12.13 To give notice of the decision in writing to specified people, and to notify others by the most appropriate means.
12.14 Where an authorisation for deprivation of liberty has been granted by the Supervisory Body, to appoint a Relevant Person’s Representative to represent the interests of the Relevant Person.
12.15 To respond to appropriate requests to review an authorisation granted under the Deprivation of Liberty Safeguards.
12.16 To ensure all complaints are dealt with in line with the organisational complaints processes.
12.17 Any Authorisation request sent to the incorrect Supervisory Body will be redirected to the Managing Authority and / or the appropriate Supervisory Body.
13. Supervisory Bodies commissioning responsibilities
13.1 The provision of Mental Health Assessors who are:
- Approved under section 12 of the Mental Health Act 1983, or
- A registered medical practitioner with a minimum of 3 years post registration experience in the diagnosis of or treatment of mental disorder,
- Who in addition has undertaken and completed the standard training for Deprivation of Liberty Safeguards. This is currently accessed through the Royal College of Psychiatry
- And in the 12 months prior to their selection have completed further training relevant to their role as a Mental Health Assessor
- Have an up to date Disclosure and Barring Service Check
- Hold professional indemnity insurance
13.2 The provision of Best Interest Assessors, who is either:
- A registered Nurse, Social Worker, Occupational Therapist, Chartered Psychologist or Approved Mental Health Practitioner
- With 2 years’ post qualifying experience
- Who has successfully completed an appropriate training programme, as outlined by the Secretary of State.
- And following initial training in the 12 months prior to selection completed further training relevant to their role as Best Interest Assessor
- Have an up to date Disclosure and Barring Service Check
- Hold professional indemnity insurance (Best Interest Assessors employed by Devon County Council, Torbay Local Authority or Torbay and South Devon NHS Foundation Trust will receive corporate indemnity insurance).
13.3 The provision of an IMCA service to provide advocacy under section 39 of the MCA 2005.
13.4 The provision of Paid Representatives where appropriate.
14. Managing Authority
14.1 This is the care home or hospital where the proposed deprivation of liberty is occurring. The hospital may be public or private. A care home is one that has regulatory activity overseen /monitored by the Care Quality Commission.
15. Key responsibilities of Care Homes and Hospitals in their role as Managing Authorities
15.1 To ensure care-planning processes consider whether a person has the capacity to consent in accordance with the Mental Capacity Act (2005) to the services which are to be provided and whether those arrangements are likely to result in a deprivation of liberty.
15.2 To consider, before admitting a person to a hospital or residential care home in circumstances that may amount to deprivation of liberty, whether the person’s needs could be met in a less restrictive way. Ensuring that any restrictions are the minimum necessary and in place for the shortest possible period.
15.3 To ensure clear and robust procedures are in place for staff to offer guidance and clarity on when a request for a standard authorisation would be required, and the procedures that should be followed in order to make an application to the Supervisory Body.
15.4 To ensure that no person, except in unpredictable circumstances, is deprived of their liberty unless a Standard Authorisation has been applied for and granted by the Supervisory Body for that specific situation and remains in force.
15.5 To obtain authorisation from the Supervisory Body in advance of the deprivation of liberty, except in urgent circumstances, in which case authorisation must be obtained from the Supervisory Body within seven calendar days of the start of the deprivation of liberty.
15.6 To comply with any conditions attached to the authorisation as recommended by the BIA and attached to the authorisation by the Supervisory Body.
15.7 To monitor whether the Relevant Person’s Representative maintains regular contact with the person.
15.8 To review the care plan on an ongoing basis.
15.9 To maintain records.
16. How and when can Deprivation of Liberty Safeguards be applied for and authorised?
16.1 The following guidance seeks only to offer a brief outline of the application and authorisation process. For a full explanation of process and responsibilities practitioners must refer to the Deprivation of Liberty Safeguards (DoLS) code of practice chapter 3.
16.2 Applications should be made using the locally approved forms copies of which can be obtained from the local DoLS Service.
17. Urgent Authorisation
17.1 In exceptional circumstances, where deprivation of liberty needs to commence before a Standard Authorisation can be obtained, the Managing Authority can issue itself an Urgent Authorisation by completing standard form 1 which makes deprivation of liberty lawful for a short period of up to 7 days.
17.2 A request for a Standard Authorisation, by also completing form 1, must be made simultaneously with the issuing of an Urgent Authorisation.
17.3 On receipt of an Urgent Authorisation, all assessments are required to be completed within a 7-day timescale. On receipt on a Standard Authorisation only, a 21-day timescale applies.
17.4 Managing Authorities will need to ensure they have procedures in place to identify if authorisation for deprivation of liberty is required, or if it is necessary in exceptional circumstances to issue an Urgent Authorisation. Procedures should clearly identify who is responsible for taking action at this stage including signing applications.
17.5 Managing Authorities will need to ensure every effort has been made to avoid deprivation of liberty. The DoLS service will be available for discussion and advice as required. It should be noted that the Managing Authority is responsible for deciding whether to make an application.
17.6 Where it is decided that an authorisation is required, the appropriate member of staff identified in the internal procedures should complete the standard application form 1 and send it securely to the appropriate DoLS office.
17.7 Once form 1 has been sent to the DoLS Service, the Managing Authority have a statutory duty, if judged practicable, to inform the Relevant Person and their family/carers that an application for a Standard Authorisation has been made. The Managing Authority should also keep a copy of form 1 and clear written records of the reasons for the application.
17.8 If the Relevant Person is already subject to a DoLS authorisation and a move is planned to another care home or hospital, the new Managing Authority must apply to the Supervisory Body for an authorisation following the procedures outlined above.
17.9 If a Managing Authority receives a request from a Third Party to apply for an authorisation or any other concern that implies deprivation of liberty, or a request to change the care regime the Managing Authority must normally respond to this request within 24 hours. Standard letter 1 can be used for this. Where the Managing Authority has been unable to resolve the Third Party request, i.e. where they have not been able to satisfy the Third Party that no deprivation of liberty is occurring, they must submit an application to the DoLS Service following the procedures outlined above. Where the Managing Authority has failed to make an application, the Supervisory Body will accept a referral from the Third Party. A record should be kept by both the Managing Authority and the Supervisory body of all Third Party requests that are resolved as well as those that progress. Standard letters are available in Appendix 1
18. Managing Authority responsibilities re Urgent Authorisations
18.1 Managing Authorities should have a procedure in place giving clear guidance to staff about the actions, responsibilities and timescales required for issuing Urgent Authorisation’s. This will need to include responsibility for signing Urgent Authorisation’s and deputising arrangements.
18.2 Managing Authorities should refer to the DoLS Code of Practice for clear guidance governing the circumstances in which an Urgent Authorisation can and cannot be issued. Any care or treatment provided under an Urgent Authorisation must comply with Sections 1 to 6 of the Mental Capacity Act (2005) and the relevant people must be consulted before granting an Urgent Authorisation.
18.3 The Managing Authority should use standard form 1 to inform the Supervisory Body that it has issued an Urgent Authorisation and requested a Standard Authorisation using the same form. Once completed form 1 should be sent directly to the DoLS Service for which the individual is ordinarily resident.
18.4 The Managing Authority will need to keep records of Urgent Authorisation’s issued and give written copies to the Relevant Person and any IMCA instructed. The Relevant Person’s family, friends and carers should be notified in order to enable them to offer informed support to the Relevant Person to understand the effects of the authorisation and their right to challenge via the Court of Protection.
19. Extending the Urgent Authorisation
19.1 In exceptional circumstances where the Standard Authorisation cannot be dealt with within the period of the Urgent Authorisation, the Managing Authority can apply to extend the period of the Urgent Authorisation for a maximum of a further 7 days by completing the request for an extension also contained within form 1.
19.2 The Supervisory Body will need to determine whether or not to extend this Urgent Authorisation and inform the Managing Authority of its decision in writing.
20. Standard Authorisation
20.1 This is requested by the Managing Authority to the Supervisory Body where the person is Ordinarily Resident.
21. Receiving a request for assessment for a Standard Authorisation:
21.1 Upon receipt of an application for a Standard Authorisation, the DoLS service will consider whether the application is complete. If the standard form 1 is incomplete/invalid, the DoLS Service will refer back to the Managing Authority for further information/necessary action. The application process will be restarted on receipt of the revised application/information.
21.2 If the DoLS Service considers that the application has been made too far in advance this should be resolved with the Managing Authority and the application process should be stopped and a new application should be made at a more appropriate time.
21.3 The DoLS service will plan the order of assessments taking into account the circumstances of the case starting with assessments that are most likely to be negative & the least resource intensive. This will make the most prudent use of resources and be less potentially confusing for the Relevant Person and their carers.
21.4 The DoLS service will commission the BIA and the MHA and provide clear guidance on the following:
- The required assessments
- The timescale within which the assessments must be completed and the report submitted to the DoLS service
- The name and contact details of the other relevant assessor
- Any relevant care plans/risk assessments submitted by the Managing Authority.
22. Independent Mental Capacity Advocate (IMCA)
22.1 For the role and function of the IMCA see the DoLS Code of Practice 3.22 -3.28 & 7.34-7.41.
23. Third Party requests
23.1 The DoLS Service may receive referrals from a Third Party regarding a potential unauthorised deprivation of liberty via a standard DoL Letter 2. The DoLS Service should keep a written record of the request.
23.2 The DoLS Service should consider the issue with the Managing Authority and decide whether to pursue the request further and appoint a BIA to assess whether there is an unauthorised DoL.
23.3 Having received the BIA’s report the Supervisory Body records its decision using standard forms available and will provide copies of the decision outcome to the Third Party, the Relevant Person, the Managing Authority and any IMCA.
23.4 If the deprivation of liberty is occurring and is not already authorised the Managing Authority needs to issue itself an Urgent Authorisation, or cease the deprivation of liberty immediately.
23.5 The DoLS service must also consider whether the failure to request an assessment by the Managing Authority is a failure to protect the Relevant Person’s rights or is an act or omission that constitutes abuse as defined in the Care Act (2014).
24. Assessment process for a Standard Authorisation
24.1 The DoLS Service will be responsible for appointing the MHA and the BIA. The choice of assessor will be governed by:
- ensuring compliance with regulations
- knowledge of the Relevant Person
- skills and specialist knowledge for the Relevant Persons needs
- expedience of resources
24.2 Staff should refer to Chapter 4 of the DoLS Code of Practice for full guidance on each of the assessments, their purpose and how they should be conducted.
24.3 The Managing Authority must provide the BIA conducting the assessments with any relevant assessments or care plans and enable access to and copies of any records held that assessors or IMCA may consider relevant.
25. The six assessments
25.1 The following six assessments will normally need to be completed using the Association of Directors of Adult Social Services (ADASS) Standard forms
- Age Assessment. This assessment is to establish if the Relevant Person is aged 18 or over.
- Mental Health Assessment. This assessment must be conducted by a MHA. The purpose is to establish whether the Relevant Person is suffering from a mental disorder within the meaning of the Mental Health Act (1983).
- Mental Capacity Assessment. This establishes whether the Relevant Person lacks the capacity to consent to the arrangements proposed for their care or treatment. This will be conducted by either the MHA or the BIA. The assessor may need to seek specialist advice for clients with specific communication needs.
- No Refusals Assessment. This establishes whether an authorisation for deprivation of liberty would conflict with other existing authority for decision making for that person, such as but limited to a valid and applicable Advance Decision to refuse treatment.
- Eligibility Assessment. This establishes whether the Relevant Person is subject to a requirement under the Mental Health Act (1983) that may conflict with an authorisation under DoLS, or whether their care should be provided under the Mental Health Act (1983). The MHA will generally complete the Eligibility assessment unless the assessor is an Approved Mental Health Professional (AMPH) as well as a BIA.
- Best Interest Assessment. This assessment establishes whether the proposed deprivation of liberty is in the Relevant Person’s best interests, is necessary to prevent harm and is proportionate to the likelihood and seriousness of the harm. This assessment must be conducted by the BIA and take into account submissions and/or information submitted by an IMCA.
25.2 Equivalent Assessment. An equivalent assessment is an assessment that has been carried out in the last 12 months, not necessarily for the purpose of a DoL authorisation, meets all the requirements of the DoL assessment, which the Supervisory Body is satisfied is accurate and of which the Supervisory Body has a copy. The Act states that where an equivalent assessment to any of the above six assessments has already been obtained, it may be relied upon instead of obtaining a fresh assessment.
26. Additional duties during the assessment process
26.1 The BIA should at this stage initiate identifying a Relevant Person’s Representative (RPR), although this person will not actually be appointed until an authorisation is approved and confirmed in writing.
26.2 The role of the RPR is to maintain contact with the Relevant Person, to provide independent representation and support to the Relevant Person in all matters relating to the Standard Authorisation, including triggering a review or appeal to the Court of Protection.
26.3 The Code of Practice provides eligibility criteria for who can be the RPR. At the assessment stage the BIA must identify if there is anyone they would recommend as appropriate and suitable to become the RPR.
26.4 If the Relevant Person does not have anyone who could act as the RPR the BIA must inform the Supervisory Body. The responsibility for ensuring a RPR is appointed at the point of an authorisation being granted rests with the Supervisory Body.
26.5 Assessors (BIA or MHA) should inform the DoLS Administrator if problems are anticipated that may mean the assessment is not going to be completed within the statutory time limits.
27. The assessment outcomes
27.1 If any of the assessments conclude that one of the requirements is not met, the assessment process should stop immediately and authorisation will not be granted. Form 6 should be completed by the DoLS Service on behalf of the Supervisory Body.
27.2 If all 6 qualifying criteria are met of form 5 will be completed by the DoLS Service on behalf of the Supervisory Body
27.3 On completion of forms 5 or 6, all assessment paperwork will forward to the Supervisory Body Authorising Officer, who has responsibility for signing the report and officially granting or refusing the authorisation.
27.4 When authorisation is given a RPR should be appointed based on the BIA’s recommendations.
27.5 The appointment must be confirmed in writing by the Supervisory Body and the appointed RPR.
27.6 If there is any delay in appointing a RPR, or there is a period between the termination of one RPR and the appointment of another, the Supervisory Body should appoint an IMCA under section 39C to support the Relevant Person until an RPR has been appointed. If there is any delay in appointing a RPR, the IMCA, where instructed as a 39A, will remain involved.
28. Recording and notifying relevant parties of the decision
28.1 Once the Authorising Officer for the Supervisory body has signed the relevant paperwork (form 5/6), all documentation needs to be returned to the DoLS service for recording and disseminating. The DoLS service is responsible for ensuring the following:
- A copy of the standard outcome form is kept and filed
- The outcome is recorded on the Organisation’s electronic information data system either Care First in Devon or PARIS in Torbay.
- Signed copies of either form 5 or 6 are sent to the following:
- The Managing Authority
- The Relevant Person
- The RPR
- The IMCA (if required)
- Any other Interested Persons consulted by the BIA (if appropriate).
29. Responsibilities of the Managing Authority once the outcome report has been received
29.1 When the Managing Authority receives form 5 stating that the authorisation has been granted, it must take all practical and possible steps to ensure that the Relevant Person understands the effects of the authorisation and their rights. The Managing Authority should consider any specific communication needs and provide information to the Relevant Person should be provided to the Relevant Person in an accessible format
29.2 Whether the authorisation is granted or not, the outcome report must be included in the Relevant Person’s records.
29.3 The Managing Authority must make alternative arrangements for care where authorisation is not granted, based on the recommendations made in the outcome report and ensuring urgent action to prevent unlawful deprivation of liberty.
29.4 The Managing Authority must ensure that visits by the RPR are accommodated and recorded in the Relevant Person’s records.
29.5 The Managing Authority must inform the DoLS Service if the RPR is not maintaining appropriate contact.
29.6 The Managing Authority must inform the DoLS Service where the Relevant Person or their RPR requests an IMCA.
29.7 The Managing Authority must inform the Supervisory Body immediately where a Relevant Person or their RPR /family object to the Standard Authorisation in place
30. Actions to be undertaken by the Supervisory Body and Managing Authority where liberty is being deprived but the requirements for authorisation are not met
30.1 Where the Supervisory Body refuses authorisation for deprivation of liberty because one of the qualifying requirements are not met, but agrees that deprivation of liberty is occurring, depending on which of the six requirements are not met, the Managing Authority along with the Supervisory Body will need to take appropriate alternative action.
30.2 Age Assessment– If this assessment does not meet the requirements for authorisation because the Relevant Person is under the age of 18, the Managing Authority will need to refer the case to the relevant children’s services the use of the Children Act (1989) or the Mental Health Act (1983) may need to be considered.
30.3 Mental Health Assessment– If this assessment does not meet the requirement for authorisation because the Relevant Person does not have a mental disorder as defined by the Mental Health Act (1983), the Managing Authority cannot legally deprive the Relevant Person of their liberty.
30.4 Mental Capacity Assessment– If this assessment does not meet the requirement for authorisation and it is found that the person does have the mental capacity to make decisions about being accommodated for the purpose of receiving care, it is unlawful to deprive them of their liberty.
30.5 Best Interests Assessment- Where this assessment does not meet the requirement for authorisation because deprivation of liberty is deemed not to be in the Relevant Person’s best interests, the care plan will need to be amended to avoid unlawful deprivation of liberty and consideration given to organisational Safeguarding Adult processes.
30.6 Eligibility Assessment– If this assessment does not meet the requirement for authorisation because the Relevant Person was identified as meeting the criteria for detention under the Mental Health Act (1983), a referral to the AMHP Hub must be made by the individual who undertook the Eligibility assessment.
30.7 No Refusals Assessment– Where this assessment does not meet the requirement for authorisation because there is a valid refusal from an Attorney or Deputy or where an applicable and valid Advance Decision to refuse treatment is in place, alternative arrangements for care or treatment will need to be made.
31. Part 8 Reviews
31.1 A Standard Authorisation can be reviewed at any time and will be undertaken by the DoLS service on behalf of the Supervisory Body. Reviews will be conducted where any of the statutory grounds for review as stated in the Code of Practice are met, or where the Managing Authority, the Relevant Person or their RPR requests a review. The Managing Authority can request a review by completing form 10.
31.2 Deprivation of liberty can end before a formal review. An authorisation only permits deprivation of liberty; it does not mean that the person must be deprived where a change of circumstance no longer necessitates it.
32. Supervisory Body responsibilities with regard to Part 8 reviews
32.1 The DoLS Service must be aware of the statutory grounds for conducting reviews as stated in the Code of Practice. If the statutory grounds are met, the DoLS Service must carry out a review.
32.2 The DoLS Service must also conduct a review where it has been requested by the Managing Authority, the RPR or the Relevant Person.
32.3 Once a request for a review has been received, the DoLS Service should acknowledge receipt of the request and its plans for conducting the review, in writing and within 24 hours of the request being received. Form 10 should be used to inform the Relevant Person their RPR, any IMCA involved and the Managing Authority of their intention to conduct a review.
32.4 In general, the reviews should follow the same process as the Standard Authorisation for each of the qualifying requirements that need to be reviewed. The DoLS Service will have 21 days in total in which to complete the review.
32.5 Following the review assessors will need to forward their reports to the DoLS service
32.6 The DoLS service will need to complete form 10 detailing the outcome of the reviews and required actions before forwarding to the relevant Supervisory Body’s Authorising Officers.
32.7 Once authorised a copy of all of the completed review paperwork will be sent to the Managing Authority, the Relevant Person, their RPR and any IMCA.
32.8 The DoLS Service will keep records of any information received by the Managing Authority relating to the review and record any outcomes of the review in the Relevant Person’s records.
33. Appeals to the Court of Protection regarding a granted Standard Authorisation or in cases where the Relevant Person or their Relevant Person’s Representative is objecting to the Standard Authorisation.
33.1 The DoLS process enables the Relevant Person or their RPR/IMCA the right to challenge the lawfulness of the deprivation of liberty and granted Standard Authorisation via an application to the Court of Protection.
33.2 The Court of Protection judgement entitled AJ v’s a Local Authority [2015], reaffirmed the positive obligation on the Local Authority to ensure anyone who objects to the deprivation of their liberty has an unqualified and unconditional right of challenge. Therefore the DoLS Service, on behalf of the Supervisory Body, must inform the Legal Team and provide all relevant paperwork for their consideration.
34. Applications to the Court of Protection
34.1 Any application on behalf of the Local Authority to the Court of Protection would be made by the County Solicitor.
34.2 The following have an automatic right of access to the Court of Protection:
- The Person who lacks or is alleged to lack capacity.
- The Donor of a Lasting Power of Attorney or their Donee
- A Deputy appointed by the Court
- Anyone named in an existing Court order
- The Relevant Person’s appointed RPR
35. Out of area assessments
35.1 When deciding which Local Authority is responsible for assessing an individual living in a registered care home, the rules of ‘Ordinary Residence’ apply.
35.2 When there is a dispute about where the Relevant Person is Ordinarily Resident, the Supervisory Body will be the Local Authority for the area in which the care home/hospital is situated, until the matter is resolved.
36. Relationship between the Mental Capacity Act (2005) and Mental Health Act (1983)
36.1 In cases where there are issues of mental capacity and mental disorder – consideration needs to be given to whether the Mental Health Act (1983) is the more appropriate response.
36.2 Staff will need to think about using the Mental Health Act (1983) to detain a person and treat their mental disorder if:
- The treatment is being provide in a psychiatric unit
- The individual lacks capacity with regard to the proposed treatment and their care or treatment amounts to a deprivation of liberty
- The individual is objecting to some or all of the treatment proposed.
36.3 If the Person is resident anywhere other than in a psychiatric ward and their care and treatment plan is in place predominately for the treatment of a mental illness consideration should be given to whether the criteria for detention under the Mental Health Act (1983) are met.
37. Best Interest Assessor training
37.1 Devon County Council and Torbay and South Devon NHS Foundation Trust (on behalf of Torbay Local Authority) will ensure that all BIA’s have undertaken accredited courses and will provide BIA’s with updated training as per the statutory requirements.
37.2 BIA training opportunities will be offered to eligible staff across Devon and Torbay.
38. Mental Health Assessors (section 12 Drs)
38.1 Devon County Council and Torbay and South Devon NHS Foundation Trust (on behalf of Torbay Local Authority) have jointly entered into a contract with Devon Partnership Trust who will ensure the on-going recruitment, approval and re-approval process for s12 MHA’s as per statutory requirements. Devon Partnership Trust will ensure there is an appointed DoLS Clinical Lead to oversee the requirements of the contract, and in addition provide any necessary clinical supervision.
39. Information sharing and recording
39.1 The Act places requirements upon Managing Authorities and Supervisory Bodies to share information with certain parties when they are undertaking statutory activity under the Act.
39.2 In addition to the directions in the DoLS Code of Practice and the statutory Regulation the principles of the General Data Protection Regulations (GDPR) apply.
39.3 All issues relating to DoLS activity must be securely recorded and held in line with GDPR requirements and organisational policy.
40. Deprivation of Liberty Safeguards Team contact details
40.1 Torbay and South Devon NHS Foundation Trust
DoLS Service
1st Floor Tor hill House
8 Union Street
Torquay
TQ2 5QW
Tel number: 01803 219832
Email: dolstorbay@nhs.net
40.2 Devon County Council
DoLS Service
1ST Floor Annexe
County Hall
Topsham Road
Exeter
EX2 4QR
Tel no: 01392 381676
Email: dols@devon.gov.uk
Appendix 1 – Deprivation of Liberty Letter 1
Letter to managing authority concerning unauthorised deprivation of liberty
Sender’s address
Contact telephone number
Date
Name and address of managing authority
Dear Sir/Madam
Re [name of person/resident]
DOB: Hospital Number:
I am writing to you about the above-named person who is accommodated in your hospital or care home [delete as applicable]
I am the person’s [state relationship or interest in the matter e.g. ‘child’, ‘friend’, ‘representative’, etc]
It appears to me that this person lacks capacity to consent to the arrangements made for their care or treatment and is subject to an unauthorised deprivation of liberty. I am therefore writing in accordance with the provisions of the Mental Capacity Act 2005, to ask you to give an urgent deprivation of liberty authorisation and request a standard authorisation from the supervisory body.
My reasons for believing that this person is subject to an unauthorised deprivation of liberty are that…. [briefly state reasons]
As I am sure you know, if you do not request a standard authorisation within a reasonable period which is 24 hours (as set out in the Code of Practice Paragraph 9.1), I may ask the supervisory body to decide whether or not there is an unauthorised deprivation of liberty.
Thank you for your consideration of this matter.
Yours faithfully
Signature
Appendix 1- Deprivation of Liberty Letter 2
Letter to supervisory body concerning unauthorised deprivation of liberty
Sender’s address
Contact telephone number
Date
Name and address of supervisory body
Dear Sir/Madam
Re [name of person/resident]
DOB: Hospital Number:
I am writing to you about the above-named person who is accommodated in [Name and address of hospital or care home].
I am the person’s [state relationship or interest in the matter, e.g. ‘child’, ‘friend’, ‘representative’, etc]
On [enter date], I wrote to/spoke with the managing authority of the [name of hospital or care home]. I informed them that is appeared to me that this person lacked capacity to consent to the arrangements made for their care or treatment and was subject to an authorisation and to request a standard authorisation, in accordance with the provisions of the Mental Capacity Act 2005.
My reasons for believing that this person is subject to an unauthorised deprivation of liberty are that…. [briefly state reasons]
I understand that the managing authority has not requested a standard authorisation.
I am therefore writing to make a formal request that you now decide whether or not this person is subject to an authorised deprivation of liberty.
Thank you for your consideration of this matter.
Yours faithfully
Signature
Document Control
| Revision Date | Summary of changes | Version issued | Issued to Devon | Issued to Torbay |
| NA | First draft | Feb 2009 | Sharon O’Reilly | Nicky Griffin |
| 11/3/2010 | Ratified | 14/3/2010 | MCA Sub Group members | |
| 22/7/2013 | Reviewed | Sharon O’Reilly | Nicky Griffin | |
| August 2013 | Reviewed | 12/8/2013 | MCA Sub Group members | MCA Sub Group members |
| May 2014 | Reviewed in light of the Supreme Court ruling on Cheshire West | 30/5/2014 | MCA Sub Group members | MCA Sub Group members |
| July 2016 | Reviewed | MCA Sub Group and Legal Team | MCA Sub Group and Legal Team | |
| May 2019 | Reviewed | 21/5/2019 | Sandra Geary | Nicky Griffin |
| Nov 2020 | Reviewed | Sandra Geary | Nicky Griffin | |
| June 2023 | Reviewed | 20/6/2023 | Sandra Geary, Jen Brook, Rebecca Billing | Nicky Griffin |