Deprivation of Liberty Safeguards (DoLS)

The Mental Capacity Act 2005 assumes that adults have the mental capacity to make their own decision at the time the decision needs to be made. However, a person may lack mental capacity due to the impact of conditions such as dementia, a learning disability, an acquired brain injury, or mental illness. 

The Mental Capacity Act 2005 enables actions or decisions to be made in the best interests of a person who lacks mental capacity to make a specific decision.  

Under the DoLS framework care homes and hospitals are known as ‘managing authorities’. When a managing authority believes an adult (18+) in their care lacks the mental capacity to consent to be admitted to the care home or hospital, and whose circumstances means they are deprived of their liberty, it must make a request to the relevant local authority (known as the ‘supervisory body’) to authorise the deprivation of liberty.  

The managing authority is able to apply the ‘acid test’ from case law as to determine if the person in their care is being deprived of their liberty.

This asks 2 questions: 

• Is the person subject to continuous supervision and control?
• Is the person free to leave? (not just whether they can leave the building, but whether they are able to choose where to live)

Where the answer to these questions is ‘yes’, the managing authority should make a request for the deprivation of liberty to be authorised by the relevant local authority.  

The Department of Health has produced the Mental Capacity Act 2005 Deprivation of Liberty Safeguards - a guide for family, friends and unpaid carers.

The Managing authority (care home or hospital) should inform family members of the person in their care that they have made an application to the supervisory body for an authorisation. This is known as a Standard Authorisation.  

Managing authorities will send requests for an authorisation to the Local Authority where the person normally lives (where they are deemed to have “ordinary residence”).  

Where the person is already being deprived of their liberty when the managing authority applies for an authorisation to the supervisory body, it can grant itself an urgent authorisation for up to seven days for the relevant assessments to be carried out. This urgent authorisation can be extended by the supervisory body for a further 7 days.

Assessors

The DoLS authorisation process involves 2 assessors visiting and interviewing the person who is being deprived of their liberty.

One is a Mental Health Assessor (a doctor), and they visit to make sure that the person has a diagnosis which allows the DoLS to be used (to confirm they have what is described as a mental disorder) and they have checked that the use of DoLS is the correct legal route (rather than the Mental Health Act). They will usually also assess the person’s mental capacity to be able to make the decision to validly consent to remain at the care home or hospital to receive care and/or treatment.  

The second assessor is called a ‘Best Interests Assessor’ (often a social worker) and they will also visit the person to assess the person’s mental capacity to be able to make the decision to validly consent to remain at the care home or hospital to receive care and/or treatment. If so, they will check the arrangements do not conflict with any decision made by an LPA (or Deputy) for health and welfare.

They will confirm that where the person is being deprived of their liberty this is in their best interests. They will check the deprivation of liberty is necessary and proportionate to the risk of harm the person would otherwise experience. The care / treatment cannot be safely given in a less restrictive way. 

The Best Interests Assessor (BIA) will also consult family and friends during the assessment process. Where there is no one to consult who is not involved in a paid professional capacity (with the exception of a Paid Relevant Persons Representative), the supervisory body will arrange for the person to be supported during the assessment by an Independent Mental Capacity Advocate (IMCA).  

When this request has been granted by the Supervisory Body, this is known as a Standard Authorisation.

Once the assessment reports by the Mental Health Assessor (doctor) and Best Interests Assessor (BIA) are completed, they are sent to the supervisory body (Local Authority).

An authoriser at the supervisory body will scrutinise the information contained in the assessments. If the criteria in the assessments are met, a standard authorisation will be granted.

Where appropriate, conditions may be attached to the standard authorisation for the managing authority to follow so as to reduce the level of restrictions. If the authoriser finds the criteria are not met, a standard authorisation will not be granted.  

A standard authorisation can have a maximum duration of 12 months.

The BIA will recommend an authorisation period, which the authoriser can agree with or reduce. The BIA can also recommend conditions to be attached to the standard authorisation, which the authoriser has the power to agree with or add their own conditions.

A review of a standard authorisation can be requested from the supervisory body at any point throughout its duration. The standard authorisation can be reviewed by the supervisory body at the request of the relevant person, managing authority, or relevant person’s representative (RPR).

The standard authorisation can be challenged by the relevant person through an application to the Court of Protection, with support from their RPR or IMCA if necessary.

Where a person (the relevant person) is subject to a standard authorisation the supervisory body must appoint a Relevant Person's Representative (RPR).

The role of the RPR is essentially to speak up for the relevant person and help to protect, and where necessary, exercise their rights. 

The RPR should act and make decisions in the person’s best interests as stipulated in the Mental Capacity Act (MCA).  

The importance of the RPR role is reflected in the supervisory body (the local authority) having to follow a set of eligibility criteria when considering appointing someone to be the RPR.  

To be eligible to be the relevant person’s representative, a person must be:

• 18 years of age or over  
• able to keep in contact with the relevant person, and  
• willing to be appointed

The person must not be:

• financially interested in the care home or hospital where relevant person is being deprived of their liberty  managing authority (i.e. a partner, director, other office-holder or major shareholder of the managing authority)
• a relative of a person who has a financial interest in the relevant person’s managing authority
• employed by, or providing services to, the care home in which the person relevant person is residing
• employed by the hospital in a role that is, or could be, related to the treatment or care of the relevant person
• employed to work in the relevant person’s supervisory body in a role that is, or could be, related to the relevant person’s case 

During the DoLS assessment, checks will be made to confirm if the relevant person has the capacity to select their own RPR. If the person selected meets the eligibility criteria, the supervisory body will appoint this person.

Where the relevant person lacks the capacity to select their own RPR and there is a Lasting Power of Attorney (LPA) or Court-appointed Deputy with health and welfare decision making authority, they can select a person (including themselves) to become the RPR. 
 
Where there is no LPA or Court-appointed Deputy for health and welfare but there is a family member or friend who wishes to undertake the role the BIA will check they meet the eligibility criteria and then will recommend they are appointed as the RPR. 

The supervisory body will then confirm whether they feel the selected person is appropriate for the role. 

Where it is confirmed that there are no family members or friends available to undertake the RPR role, the supervisory body will appoint a paid RPR from a local advocacy provider. This is provided at no cost to the relevant person.

Once the RPR has been appointed and the Standard Authorisation Granted paperwork has been shared with them, they must confirm in writing that they are willing and able to take on the role.

An unpaid RPR (family or friend) can request Independent Mental Capacity Advocate (IMCA) support for the relevant person to help them understand the authorisation and their rights. An unpaid RPR is able to request IMCA support for themselves to help them understand and carry out their role effectively. This support could be especially useful when dealing with processes such as reviews and considering making an application to the Court of Protection.

Find out more about Deprivation of Liberty Safeguards on the POhWER website.

Download a Guide to Relevant Person’s Representatives.

The managing authority should also keep the RPR updated with changes to the relevant person’s care plan and treatment as this may make a request for a review of the standard authorisation appropriate.

The RPR can request a review of the authorisation from the supervisory body (Local Authority) if they feel there has been a change in the relevant person’s circumstances which makes the authorisation valid but for a different reason than originally stated, or, one or more of the requirements are no longer met and it should be ended, or if the conditions should be changed.  

Where the relevant person appears to be trying to leave, or asking to live somewhere else, or objecting to parts of their care or treatment plan, the RPR has to be willing to consider an application to the Court of Protection on their behalf to challenge the DoLS Standard Authorisation.

Where the RPR concludes this is necessary, they must be willing and able to make an application on behalf of the relevant person to the Court of Protection to challenge the DoLS Standard Authorisation.

There will be occasions when family members or friends prefer not to take on the RPR role and no pressure will be placed on any individual by West Northamptonshire Council, as the supervisory body, for them to take on the RPR role. In these circumstances, the supervisory body will appoint a Paid RPR from a local advocacy service.