Deprivation of Liberty Safeguards Procedure

See: Understanding the Deprivation of Liberty Safeguards, which is a dedicated section of the larger Mental Capacity Act 2005 Resource and Practice Toolkit. It provides general guidance about the Safeguards, as set out in Schedules A1 and 1A of the Act and is divided into the following sections:

1. Using this Guidance, Keywords and Forms;
2. When the Deprivation of Liberty Safeguards Apply;
3. Requesting a Standard Authorisation;
4. The Assessment of Qualifying Requirements for a Standard Authorisation;
5. The Best Interests Assessment;
6. The Eligibility Assessment;
7. Granting a Standard Authorisation;
8. The Independent Mental Capacity Advocate;
9. The Relevant Person's Representative;
10. Reviewing, Suspending and Ending a Standard Authorisation;
11. The Power of any Eligible Person to Request a Deprivation is Considered;
12. Urgent Authorisations.

Under the DoLS framework a deprivation of liberty is present when all of the following apply:

1. The person affected is over the age of 18; and
2. They are detained (or will be detained) in a care home or hospital; and
3. The detention is for the purpose of receiving care or treatment; and
4. The person lacks capacity to consent to their accommodation, or to the care or treatment being received.

A person is 'detained' if:

1. They are subject to continuous supervision and control; and
2. They are not free to leave the place in which they are being detained; and
3. The care and treatment being received is imputable to the state (the responsibility of the state to provide).

Not free to leave

A person is not free to leave if they:

1. Are required to be there to receive the care or treatment; and
2. Would be prevented from leaving if they attempted to do so;
3. Would be brought back should they succeed in leaving.

An important thing to remember about being 'free to leave' is that it does not matter whether the person is asking or attempting to leave; what matters is the response that they would receive if they were to do so.

Continuous supervision and control

If the person is not free to leave then it must follow that they are subject to continuous supervision and control.

Imputable to the state

Care and treatment is imputable to the state if:

1. It has been arranged or provided by the Supervisory body; or
2. It has been arranged or provided by the NHS; or
3. A person has made their own arrangements to stay in a care home, but if they didn't have the financial means to continue paying for their care the Supervisory body would have (or be likely to have) a duty to meet their needs.

It is important to note that liberty is a human right under the European Convention on Human Rights (the ECHR) and the Human Rights Act 1998 and is therefore not limited to the circumstances set out above.

For further guidance, please see the procedure Recognising and Responding to Deprivations of Liberty.

There are 3 primary routes of request;

1. From the managing authority (where there already is an urgent authorisation in place);
2. From the managing authority (where there is no urgent authorisation in place);
3. From the managing authority (where an existing standard authorisation is due to expire).

It is important to note that there has been a substantial increase in requests for DoLS authorisations following the case law of Cheshire West and P and Q. To manage resources due the enormous influx of referrals, ADASS provided guidance for LAs on how to prioritise them. This involves leaving some ‘less urgent’ cases unallocated. Over 100K (and rising) cases nationally are currently awaiting assessment.

The MHA/MCA Team follows this nationally agreed ADASS guidance when triaging DoLS referrals, therefore practitioners should not be surprised to find that someone who has been referred is awaiting the assessments.

No urgent authorisation in place

From the date the request is received the supervisory body has:

1. A maximum of 21 days; in which to
2. Establish whether the 6 qualifying requirements are met; and
3. Where met, grant a standard authorisation.

For the reasons noted above, in practice, DoLS may not be completed to this timescale.

Urgent authorisation in place

UAs should be the exception, not the rule and should only occur as a result of unforeseen circumstances, as directed by the Code of Practice.

If an urgent authorisation is already in place the supervisory body timeframe cannot exceed the date on which the urgent authorisation ends.

nationally this seven-day timeframe is breached as a matter of course.

Note: It is possible to extend an urgent authorisation at the request of the managing authority. The process of extending an urgent authorisation can be found in Section 6, Extending an Urgent Authorisation.

Reviewing the information provided

Upon receiving a request the MHA/MCA Team will review the information provided:

1. To validate the circumstances of the request;
2. To make sure the correct form has been completed;
3. To make sure all required information is included.

In order for the circumstances of the request to be valid the referral information needs to provide evidence of all the following;

1. The person is over the age of 18;
2. They are detained (or will be detained) in a care home or hospital;
3. They are unable to consent to their care or treatment;
4. They are likely to meet the requirements under DoLS;
5. They are not or ought not to be detained under the Mental Health Act, MHA.

If all of the above circumstances cannot be validated, the wrong form has been completed, or if there is missing or insufficient information provided then the referral is void. Contact should be made with the person who completed the form to ask them to resubmit with the proper and complete information included.

It is important to note that the MA cannot keep on seeking new assessments if the first one finds P to be ineligible for DoLS unless there has been a change in circumstances. Any such action by the MA will be unlawful and such re referrals will be void.

Making a record of the request

A record of the request will be made once the referral has been accepted by the SB. This will be done by the MHA/MCA Team.

It is the responsibility of the MA to notify others that they have made a DoLS referral and not the SB.

A Best Interests Assessor (BIA) should be appointed after validating the request for a standard authorisation. Referrals will be allocated according to ADASS guidance and assessed as resources allow.

Deciding whether there is a statutory duty to appoint an Independent Mental Capacity Advocate (IMCA) is a priority task as, if an IMCA is required a standard authorisation cannot lawfully be granted until they have carried out relevant functions to support and represent the person.

The managing authority should have clearly set out on page 4 of DoLS form 1 whether there is an appropriate person (carer, donee of a Lasting Power of Attorney or Deputy) that it would be appropriate to consult in determining what would be in the person's Best Interests.

If there is no appropriate person the Local Authority must appoint a section 39A IMCA (Independent Mental Capacity Advocate).

The MHA/MCA will undertake this task when required.

The maximum length of time that an urgent authorisation can be extended is 7 days.

Only the managing authority can make a request, and only when all of the following apply:

1. The urgent authorisation has not already been extended;
2. A request has been made for a standard authorisation;
3. There are exceptional reasons why the standard authorisation has not yet been granted or considered; and
4. It is essential to continue the urgent authorisation.

Please note that it is now a matter of routine for MAs to make this request to enable the assessment to be done on time. It’s use for exceptional circumstances has in effect been abandoned.

The MHA/MCA Team will make the decision as to whether to grant an extension.

Remember: An urgent authorisation can only be extended once and for no more than 7 days.

The managing authority must be notified of the extension as soon as possible after it has been granted.

It is the responsibility of the managing authority of the care home or hospital to:

1. Vary the original authorisation; and
2. Notify those other who it has already informed of its referral of the extension.

DoLS form 1 should be used to record the extension that has been granted (or not granted).

If the extension cannot be granted, because one or more of the circumstances in which it must be granted do not apply the supervisory body must notify the managing authority.

This section of the procedure should be used by practitioners with responsibility for arranging and coordinating the assessments that will determine whether the 6 qualifying requirements have been met. This in Wakefield Council is the MHA/MCA Team.

There are 6 qualifying requirements, namely:

1. The age requirement;
2. The mental health requirement;
3. The mental capacity requirement;
4. The Best Interests requirement;
5. The eligibility requirement; and
6. The no refusal requirement.

See The Assessment of Qualifying Requirements for a Standard Authorisation to access information about each of the qualifying requirements.

Whether or not the above qualifying requirements are met (positive) or not (negative) is determined through an assessment (formally called a qualifying requirement assessment).

There are 6 assessments because there are 6 qualifying requirements.

Each requirement should be assessed in turn, and if any requirement is not met:

1. The whole process of assessment must be stopped immediately; and
2. A standard authorisation must not be granted.

In reality, the BIA will be considering the circumstances of the person ‘in the round’ and will work separately from the MH Assessor and so the assessment will not proceed in quite this way in practice.

All persons appointed to carry out an assessment must meet the following standard requirement:

1. Be able to demonstrate an applied knowledge of the Mental Capacity Act and related Code of Practice;
2. Be able to maintain appropriate records and provide clear, reasoned reports; and
3. Not be prohibited from working with vulnerable persons; or
4. Not be involved in providing care, treatment or making decisions about the person; or
5. Not be employed by the care home or hospital in which the person is detained.

In addition to the above, there are very specific requirements about who can carry out which assessment. Use the table below to make sure the right assessment is allocated to the right person.

The MHA/MCA Team determine who can carry out DoLS assessments.

For any of the six assessments, the SB can rely on previous assessments rather than doing new assessments should the SB decide that is suitable to do so. Such assessments cannot be more than 12 months old. This is known as the use of equivalent assessments.

When allocating assessments it is important to:

1. Keep a record of who has been allocated different assessments;
2. Keep a record of when assessments were allocated;
3. Agree a timeframe in which an assessment will be carried out;
4. Monitor whether assessments are completed to agreed timeframes; and
5. Review the outcome of each assessment.

This process is undertaken in Wakefield by the MHA/MCA Team. They will notify the two assessors of the required timeframes.

Each assessor must make a written record of any assessment carried out, preferably using the nationally agreed ADASS DoLS forms. In Wakefield:

DoLS form 3 is used to record the following assessments:

1. Age;
2. Mental Capacity
3. No Refusals; and
4. Best Interests.

DoLS form 4 is used to record the following assessments:

1. Mental Health; and
2. Eligibility.

A copy of each assessment report must be provided to the following people:

1. The relevant person;
2. The managing authority of the care home or hospital; and
3. Any section 39A IMCA.
4. Anyone appointed as the RPR.

Each assessor must make a written record of any assessment carried out, using the correct DoLS form and within the agreed timeframe for completing the assessment.

DoLS form 3 must be used to record the following assessments:

1. Age;
2. Mental Capacity (unless already recorded on form 4);
3. No Refusals; and
4. Best Interests.

DoLS form 4 must be used to record the following assessments:

1. Mental Capacity (unless already recorded on form 3);
2. Mental Health; and
3. Eligibility.

A copy of each assessment report must be provided to the following people:

1. The relevant person;
2. The managing authority of the care home or hospital; and
3. Any section 39A IMCA.

The assessments are reviewed and quality assured by the MHA/MCA Team once submitted.

See Section 10, When a Standard Authorisation cannot be Granted to access the procedure when a standard authorisation is not granted.

This section of the procedure should be used by Best Interests Assessors (BIA's) carrying out a Best Interests assessment.

See to access The Best Interests Assessment, which is part of the larger Mental Capacity Act 2005 resource. It sets out the requirements of a Best Interests assessment and offers practice guidance to BIA's.

The area of Best Interests is extremely complex and constantly evolving.

Regular newsletters regarding Deprivation of Liberty case law updates can be accessed at the 39 Essex Chambers website. The MCA/MHA Team are available to provide support and advice.

This section of the procedure should be used when:

1. All of the qualifying requirements have been assessed; and
2. All of the qualifying requirements have been met.

Either before the expiry of any existing authorisation or as soon as possible after allocation for all other cases.

The MHA/MCA Team will consider the suggested duration of the DoLS SA by the BIA, which will usually be for the full 12 months unless there are exceptional circumstances. The team can shorten the duration if it appears to them to be too long but they will not do this without first discussing the matter with the BIA. Examples of when a shorter duration might be recommended are as follows:

• Where it is expected that P will move placement in the near future;
• Where P objects to their placement.

The team can thus shorten but not extend the suggested duration of the DoLS authorisation. However, as with any other aspect of the assessment, it is acceptable for the SB to seek clarification as to the BIA’s rationale. 

Standard authorisations can be agreed in advance of the deprivation occurring. Indeed, it was always the intention of the DoLS legislation that this would be the case. Nationally, in practice, this never happened for a variety of reasons. Completing assessments in such cases is allowed but in reality, is a very rare event. If in doubt seek advice from the MHA/MCA Team.

The MHA/MCA Team will consider any conditions that the BIA wishes to attach to the DoLS authorisation. Any such, conditions must be relevant to the operation of the DoLS and must be within the power of the MA to do. Conditions impose a statutory duty upon the MA and so conditions which they have no power to enforce should not be attached.

Unless there is reasonable cause not to, the recommendations of the BIA should be incorporated as conditions into the standard authorisation.

Where conditions exist, adequate arrangements should be made to monitor that they are met.

A Relevant Person's Representative must be appointed, where practicable at the same time a standard authorisation is granted, or as quickly afterwards as practically possible. If it is not possible to appoint the RPR then a S39C IMCA can perform the role on a temporary basis until the appointment is confirmed. An example might be a person who has performed the role before but who is temporarily out of contact whilst for example being away on holiday or business. A S39D IMCA can fulfil the role until that person returns.

See Section 11, Appointing a Relevant Person's Representative.

A standard authorisation that is granted should be recorded using DoLS form 5. In Wakefield a slightly amended version of the ADASS Form 5 is used.

As soon as possible after granting a standard  authorisation a copy must be provided to the following people:

1. The person who is deprived (the relevant person);
2. The Relevant Person's Representative (RPR);
3. The managing authority (the care home or hospital);
4. Any Section 39D IMCA; and
5. Every interested party consulted by the Best Interests Assessor.

It is the responsibility of the managing authority (the care home or hospital) to take reasonable steps to support the person being deprived of their liberty (the relevant person) to understand:

1. The effect of the authorisation;
2. Their right to make an application to the Court to review the authorisation;
3. The right to request the supervisory body review the authorisation;
4. The right to have a section 39D IMCA appointed; and
5. How to have a section 39D IMCA appointed.

A section 39D IMCA can be appointed to help either P or their RPR and should be appointed when the supervisory body believes that:

1. Without an IMCA the relevant person or RPR will be unable to exercise one or more of their relevant rights; or
2. Without an IMCA the relevant person or RPR will be unlikely to exercise one of more of their relevant rights; or
3. The relevant person or RPR has failed to exercise one or more of their relevant rights when it would have been reasonable to do so.

The above should be explained to any potential RPR by the BIA at assessment. The RPR can make a request to the SB that they have an S39D IMCA appointed for them Relevant rights are:

1. The right to apply to the Court of Protection (under section 21A); and
2. The right to request a review of the authorisation.

It is the responsibility of the supervisory body to take reasonable steps to support the RPR to understand:

1. The effect of the authorisation;
2. Their right to make an application to the Court to review the authorisation;
3. The right to request the supervisory body review the authorisation
4. The right to have a section 39D IMCA appointed.

This section of the procedure should be used when:

1. Some or all of the qualifying requirements have been assessed; and
2. At least one of the qualifying requirements has not been met.

DoLS form 6 should be used to record the decision not to grant an authorisation, and the reasons for it.

Notification must be given in writing to the following people:

1. The person about whom the deprivation relates;
2. The managing authority of the care home or hospital;
3. Any section 39 IMCA; and
4. Every interested party consulted by the Best Interest Assessor.

If the managing authority (the care home or hospital) continues to deprive the person of their liberty when the BIA has assessed it not to be in their best interests to do so this is an unlawful deprivation, and consideration should be given to:

1. Raising a safeguarding concern;
2. Raising a service provider concern; or
3. Applying to the Court of Protection (especially if there is disagreement about what is in the person's Best Interests).

This will be managed in the first instance by the MHA/MCA Team and will likely involve senior management. It will be best practice for the BIA to inform the MCA/MHA Team of this likelihood at the earliest opportunity.

This section of the procedure should be used when a standard authorisation has been granted.

A relevant person's representative must be appointed at the same time a standard authorisation is granted, or as quickly afterwards as practically possible.

As part of their role the Best Interests assessor seek to make a recommendation to appoint a friend or family member as RPR. This is only where there appears to them to be someone who is eligible, to be able and to be willing to undertake the role. This would include the duty of the RPR to ensure that any objection to the placement by P is taken to the Court of Protection, as defined in the caselaw of the ‘AJ’ case. If no such person exists, then they will record that they were unable to identify anyone.

The MHA/MCA Team should appoint an RPR based on the recommendations of the BIA unless there is evidence to suggest that the recommended person is not appropriate to act. This of course will have been discussed already with the BIA.

See The Relevant Person's Representative for guidance about recommending RPR's, including who can and who cannot act as an RPR and the role of an RPR.

If the MHA/MCA Team does not believe that the person recommended by the Best Interests assessor (BIA) would be an appropriate appointment they should discuss their concerns with the BIA.

If it is agreed that the person is not appropriate the BIA should make a different recommendation.

A formal letter must be sent to any potential RPR to offer them the appointment. This is done using a page of Form 5 which the RPR signs and returns. Were there a significant delay in the person responding to, or accepting the offer the appointment of an interim section 39C IMCA should be considered. See example above.

Terminating the appointment of a family member or friend

The supervisory body must end the RPR appointment with immediate effect when:

1. The standard authorisation expires, is suspended or is terminated;
2. The RPR dies;
3. The RPR informs the supervisory body that they are no longer willing to act as a RPR;
4. The relevant person objects to a person they appointed continuing to act as their RPR;
5. A donee of a Lasting Power of Attorney or a Deputy objects to a person they chose continuing to act; or
6. The supervisory body believes the RPR is no longer a suitable person to act.

Unless the RPR has died a formal letter should be sent to the RPR advising them of:

1. The date that the appointment is to be terminated; and
2. The reasons for the termination.

All terminations must be recorded using DoLS form 8, and when the date of termination is reached written confirmation must be sent to:

1. The relevant person;
2. The managing authority of the care home or hospital;
3. Any donee or Deputy;
4. Any IMCA appointed

If the standard authorisation is still in place the supervisory body must arrange for the appointment of another appropriate relevant person's representative, or a section 39C IMCA if no appropriate person exists.

Terminating the appointment of a section 39C IMCA

The supervisory body must end a section 39C IMCA appointment as RPR when:

1. The standard authorisation expires, is suspended or is terminated; or
2. An appropriate family member or friend is able to take on the appointment.

A standard authorisation can only be suspended if the relevant person no longer meets the eligibility requirement of the qualifying requirements because of a change in their mental health status. That is due to their being detained under the MHA.

See: The Eligibility Assessment for further information about the eligibility requirement.

It is the responsibility of the managing authority to notify the supervisory body that the relevant person no longer meets the eligibility requirement.

The supervisory body must notify the following people that the authorisation is suspended:

1. The person;
2. The Relevant Person's Representative (RPR); and
3. The managing authority of the care home or hospital.

A standard authorisation can only be suspended for 28 days, after which period it must either recommence, if P is discharged from MHA and returns to their placement or it will end and where appropriate another referral can be made for a new DoLS.

It is the role of the managing authority to monitor whether the person becomes eligible again within that 28 day period and to notify the supervisory body. Upon being notified the supervisory body must recommence the authorisation and notify:

1. The person;
2. The Relevant Person's Representative (RPR);
3. The managing authority of the care home or hospital; and
4. Any section 39D IMCA.

The standard authorisation must be terminated when:

1. It expires;
2. It is reviewed and the person no longer meets the requirements of the DoLS;
3. The person dies;
4. The person moves placement
5. The standard authorisation is suspended for more than 28 days;
6. The Court of Protection has made an order terminating the authorisation.

If the person has died the SB will not impinge unnecessarily on the grief of the family by informing them that the DoLS has ceased. In all other circumstances, the supervisory body will notify the following people in writing:

1. The relevant person;
2. The Relevant Person's Representative (RPR);
3. The managing authority of the care home or hospital; and
4. Every interested party is consulted by the Best Interests Assessor.

If the relevant person moves

It is the responsibility of the managing authority (the care home or hospital) where the person will be moving to request a new standard authorisation if necessary. The existing authorisation will in effect cease to have effect on the day that the person moves.

If the deprivation needs to continue upon its expiration

It is the responsibility of the managing authority to make a further standard authorisation request using DoLS form 2 in a timely manner if the existing standard authorisation is due to expire, and the person is still being deprived of their liberty.