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RELEVANT CHAPTERS

Mental Capacity

Independent Advocacy

Assessment

Deprivation of Liberty outside a Hospital or Registered Care Home Setting

RELEVANT GUIDANCE

Deprivation of Liberty Safeguards: Code of Practice to Supplement the Main Mental Capacity Act 2005 Code of Practice

Department of Health Advice Note (28 March 2014)

Please note: The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019 and proposed a new system for protecting people aged 16 years and above who lack capacity to consent to care and treatment and who need to have their liberty deprived. However, in April 2023, the Department of Health and Social Care announced that the LPS will not now be implemented before the next General Election (which must be held, by law, no later than 28 January 2025).

1. The Deprivation of Liberty Safeguards

A deprivation of liberty can occur in any care setting and is when a person has their freedom limited in some way.

The Human Rights Act, 1998, states that ‘everyone who is deprived of his [their] liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his [their] detention shall be decided speedily by a court and his [their] release ordered if the detention is not lawful’.

In England and Wales, the Deprivation of Liberty Safeguards (DoLS) are used to check that actions which restrict the liberty of a person who does not have the capacity to consent to this, are done in the least restrictive way necessary to keep them safe and also that it is in their best interests.

DoLS are either made through ‘standard’ or ‘urgent’ authorisation processes. These processes are designed to make sure the decision is correct and allows a challenge to the decision if the person or their representative wishes to do so.

2. Identifying Deprivation of Liberty

In 2014 a ruling by the Supreme Court (P v Cheshire West and Chester Council and P&Q v Surrey County Council) decided that, as well as hospitals and registered care homes, a deprivation of liberty can also occur in domestic / home type settings where the government or state is responsible for imposing such arrangements. This may include a placement in a supported living arrangement in the community and in a person’s own home. Where a deprivation of liberty occurs outside of a hospital or registered care home, it must be authorised by the Court of Protection

It is crucial that all care providers can recognise when a person might be deprived of their liberty by applying the acid test (see Section 3, below) and take the necessary action by applying for an authorisation to the supervisory body. This includes all hospitals and registered care homes, domiciliary care providers, and day services.

Health and social care professionals must also be able to identify a potential deprivation of liberty, and know how to inform the supervisory body of deprivation of liberty which may not have been authorised.

3. The Acid Test

In its 2014 ruling, the Supreme Court made clear that there is a deprivation of liberty where the person:

  • is under continuous supervision and control (all three of these are necessary); and
  • is not free to leave;
  • lacks mental capacity to consent or agree to these arrangements; and
  • whose confinement is the responsibility of the government.

This means that if a person who lacks capacity to consent to this is subject to continuous supervision and control and is not free to leave they are deprived of their liberty.

The following factors are not relevant to deciding if there is a deprivation of liberty:

  • the person’s compliance / agreement or lack of objection;
  • the reason or purpose behind a particular placement; and
  • the extent to which it enables them to live a relatively normal life for someone with their level of disability.

See also Deprivation of Liberty Safeguards: At a Glance (SCIE) 

Practice guidance

When staff are working with people who may be deprived of their liberty, always consider the following:

  • MCA principles: the five principles and specifically ‘considering less restrictive arrangements’ principle (see Mental Capacity chapter);
  • Restrictions and restraint: when designing and implementing new care and treatment plans for individuals lacking capacity, be aware of any restrictions and restraint which are of a degree or intensity that mean an individual is being, or is likely to be, deprived of their liberty (following the acid test supplied by the Supreme Court- See Section 3, The Acid Test;
  • Less restrictive alternative: where a potential deprivation of liberty is identified, alternative ways of providing the care and/ or treatment should be explored by the allocated worker, in order to identify any less restrictive ways of providing that care which will avoid a deprivation of liberty.
  • 16-17 years olds: A Court of Protection judgement – Birmingham City Council v D (January 29, 2016) – widened the acid test to apply to 16 and 17 year olds who lack capacity.

4. Restrictions and Restraint

There is a difference between deprivation of liberty (which is unlawful, unless authorised) and restrictions on a person’s freedom of movement.

Restrictions of movement (if in line with the principles and guidance of the Mental Capacity Act (MCA) can be lawfully carried out in a person’s best interests, in order to prevent harm. This includes use of physical restraint where it is in proportion to the risk of harm to the person and in line with best practice.

Neither the MCA nor DoLS can be used to justify the use of restraint for the protection of members the public, members of staff, or other adults in the service or patients.

Examples of restraint and restrictions include:

  • using locks or keypads to prevent a person leaving a specific area;
  • administration of certain medication, for example to calm a person;
  • requiring a person to be supervised when outside;
  • restricting contact with family and friends, including if they could harm the person;
  • physical intervention to stop someone from doing something which could harm themselves;
  • removing items from a person which could harm them;
  • holding a person so they can be given care or treatment;
  • using bedrails, wheelchair straps, and splints;
  • requiring close supervision / monitoring in the home;
  • the person having to stay somewhere they do not want;
  • the person having to stay somewhere their family does not want.

5. Deprivation of Liberty Safeguards Process

5.1 Making an application for a standard authorisation

There are several stages involved in authorising a deprivation of liberty. It is the local authority’s legal responsibility, as the supervisory body, to ensure that where a person is being deprived of their liberty in a hospital or a registered care home, or a deprivation of liberty is being proposed, that steps are taken to safeguard them.

This only applies to people where they are ‘ordinarily resident’. The supervisory body organises and oversees the entire process for authorising a deprivation of liberty that occurs in a registered care home or hospital.

Annex 1 in the DoLS Code of Practice provides an overview of the legal process that begins when an application for a standard authorisation is received.

Overview of the Deprivation of Liberty Safeguards Process Flowchart (click on the image to enlarge it)

Diagram of the overview of the deprivation of liberty safeguards process.

As a first step, the managing authority (the hospital or registered care home) must fill out a Form 1 Deprivation of Liberty Safeguards Resources (DHSC) requesting a standard authorisation. This should be sent to the supervisory body (the local authority), who will then decide whether the person meets the criteria for a standard authorisation to be granted or not granted.

5.2 Managing authority granting an urgent authorisation

The managing authority must decide whether an urgent authorisation should be issued in addition to their application for a standard authorisation (this is their responsibility) or whether just a standard authorisation is needed.

An urgent authorisation enables the managing authority to lawfully deprive the relevant person of their liberty for a maximum of seven days, where certain criteria are met. This can be extended by the supervisory body for a further seven days, but only if certain criteria are met (see Deprivation of Liberty Safeguards Resources (DHSC).

When issuing an urgent authorisation, the managing authority must reasonably believe a standard authorisation would be granted.

Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person and inform the person managing the person’s care. Information they give to the managing authority may help to prevent the adult being deprived of their liberty. Efforts to contact family and friends and any discussions had with them should be documented in the adult’s case records and on the urgent authorisation.

The managing authority also needs to ensure that it has provide up to date contact information of friends / family / carers / advocates / allocated worker and other professionals on the Form 1 when it makes the referral or grants an urgent authorisation.

6. Assessment Process

Before the supervisory body can grant an authorisation for a deprivation of liberty they will arrange for the following assessments to be completed:

  • 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 (this would normally be in a hospital setting);
  • mental capacity assessment: carried out by either the mental health or best interest assessor to determine the person’s capacity to validly consent to their current care arrangements;
  • best interests assessment: confirms whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s best interests. The assessment 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 for DoLS. (If a person is between the ages of 16 and 18 years of age, application needs to be made to the Court of Protection if they need to be deprived of their liberty);
  • no refusals assessment: to confirm whether there is any valid advance decision which would conflict with the authorisation, or a person with a valid and registered Lasting Power of Attorney with authority over welfare decisions.

The assessments must be completed by specially trained professionals.

An independent mental capacity advocate (IMCA) may also be appointed during the assessment process if required, if the person does not have any family / friends or other non-professionals involved (see Advocacy chapter).

7. Granting, or Not Granting, a Standard Authorisation

If any of the requirements in Section 6, Assessment Process are not met, a deprivation of liberty cannot be lawfully granted. This may mean the registered care home or hospital must change its care plan to remove the restrictions and restraints which are causing the deprivation of liberty.

If all requirements are fulfilled, the supervisory body must grant the deprivation of liberty authorisation, for up to a maximum of one year. The supervisory body must inform the adult, those consulted, and the managing authority in writing.

The restrictions should cease as soon as the adult no longer requires them; they do not have to be kept in place for the full period of the authorisation.

At the end of the authorisation period, if it is believed the adult still needs to be deprived of their liberty, the managing authority must request another authorisation.

8. Conditions and Recommendations

The best interests assessor can recommend certain conditions are applied to the standard authorisation. The supervisory body is responsible for issuing the recommended conditions if it agrees with them or can issue ones of its own on the authorisation, which must be fulfilled by the managing authority.

It is ultimately the supervisory body’s responsibility that any conditions attached to a DOLS authorisation are complied with. The supervisory body should also send a monitoring form to the registered care home or hospital where a person is deprived of their liberty, to feedback about the conditions.

The best interests assessor or supervisory body can also give recommendations to the local authority or organisation managing a person’s care relating to the deprivation of liberty.

9. Appointing a Relevant Person’s Representative

Everyone who has a deprivation of liberty standard authorisation (they are called the relevant person) will be appointed a Relevant Person’s Representative (RPR). They must maintain frequent face to face contact with the person, and represent and support them in all related issues, including requesting a review or applying to the Court of Protection to present a challenge to a DoLS authorisation.

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. Their name should be recorded in the person’s health and social care records.

The RPR has the right to request the advice and support of a qualified IMCA (see Advocacy chapter).

In Re KT & others, which was heard before the Court of Protection, Mr Justice Charles approved the use of general visitors to act as Rule 3A Representatives when there is no one else – such as family members or advocates – available to act for the person who is the subject of the proceedings. General visitors are commissioned by the Court of Protection to visit the person and others involved in the case, and report back their findings. Appointing a general visitor safeguards the rights of the person in the proceedings.

It is also the responsibility of the representative or paid representative to ensure that any conditions attached to a DOLS authorisation are complied with and report this back to the Court.

See Chapter 7 in the DoLS Code of Practice for more information on the role of the RPR.

10. Reviewing the Standard Authorisation

This is also known as Part 8 DOLS Review. The registered care home / hospital (managing authority) must monitor and review the adult’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. The home / hospital must request a DoLS review if:

  • the adult (who is the ‘relevant person’) no longer meets the requirements;
  • the reasons they meet the requirements have changed;
  • it would be appropriate to add, amend or delete a condition placed on the authorisation due to a change in the adult’s situation;
  • the adult or their representative has requested a DoLS review, which they are entitled to do at any time.

The supervisory body where necessary, will arrange for assessors to carry out a review of an authorisation when the legal conditions are met. Legal or statutory DoLS reviews do not replace other health or social care reviews.

A review of the DOLS requirements and or conditions can be undertaken, if necessary, at any time during an authorisation period.

10.1 Where the relevant person objects to being deprived of their liberty in a hospital or registered care home

Paragraph 4.45 of the DoLS Code of Practice highlights that ‘if the proposed authorisation relates to deprivation of liberty in a hospital wholly or partly for the purpose of treatment of mental disorder, then the adult (also known as the relevant person) will not be eligible for a deprivation of liberty if:

  • they object to being admitted to hospital, or to some or all the treatment they will receive there for mental disorder; and
  • they meet the criteria for an application for admission under section 2 or section 3 of the Mental Health Act 1983 (unless an attorney or deputy, acting within their powers, had consented to the things to which the person is objecting).

A judgement by Mr Justice Baker Royal Courts of Justice (February 2015) AJ (Deprivation of Liberty Safeguards), ruled that in all cases where a person lacks capacity, a DoLS assessment has been completed and the relevant person objects to their placement, a referral must be made to the Court of Protection under S.21A .

This referral would often be made by the RPR (see Section 9,  Appointing the Relevant Person’s Representative), but if this does not happen the local authority should take action to make the referral themselves.

Practice lessons from the judgement include:

  • plan in advance: care should be taken to ensure that a DoLS assessment is completed before  the adult moves into residential accommodation. There should be very few exceptions to this rule. DoLS assessments should be completed in the case of ‘respite’ care if it is likely that this will become permanent either before the placement or with urgency after the placement has started;
  • RPR – conflict of interest: care should be taken that the person appointed as the RPR is willing to make a referral to the Court of Protection if the adult objects to the placement. This may be difficult if the RPR is a family member who has a personal interest in the placement of the adult. In this case a paid representative should be appointed;
  • local authority duty (supervisory body): the local authority has a duty to check that the RPR meets all the criteria and, if not, to take action to correct this. It should make resources available to support IMCAs;
  • challenge to placement: where the adult is challenging their placement, action should be taken speedily to refer to Court of Protection.

11. Alerting to Unlawful Deprivation of Liberty

If a person (professional or otherwise) suspects a person is being deprived of their liberty under the acid test (see Section 3, The Acid Test) and it has not been authorised, they should first discuss it with the registered care home manager / hospital ward manager.

If the registered care home / hospital agrees the care plan involves deprivation of liberty, they should be encouraged to make a request for authorisation. Everyone should be satisfied the care plan contains the least restrictive option available to keep the person safe, and that it is in the person’s best interests.

If the registered care home / hospital does not agree to make a request for a DoLS authorisation, the concerned person should approach the local authority, as the supervising authority, to discuss the situation and report the potential unlawful deprivation.

12. Consequences of an Unlawful Deprivation of Liberty

If an organisation breaches a person’s human rights (Articles 5 & 8) by unlawfully depriving them of their liberty, it could result in legal action being taken, including a court declaration that the organisation has acted unlawfully and breached the adult’s human rights. This could lead to a claim for compensation, negative press attention and remedial action taken by commissioners and regulators.

13. Patients Receiving Life Sustaining Treatment

See Intensive Care Society and the Faculty of Intensive Care Medicine Guidance on MCA / DoL

The judgement in R (Ferreira) v HM Senior Coroner for Inner South London decided that patients in intensive care  are not necessarily deprived of their liberty as per the acid test in Cheshire West, as the facts in the two cases differ. The effect of this judgement is that even if a patient receiving ‘life sustaining treatment’ (S.4b MCA) appears to be deprived of their liberty, they will not be said to be so if the primary condition they are being treated for is a physical condition even if there is an underlying mental disorder and they are an inpatient in intensive care.

“There is in general no need in the case of physical illness for a person of unsound mind to have the benefit of safeguards against deprivation of liberty where the treatment is given in good faith and is materially the same treatment as would be given to a person of sound mind with the same physical illness.” (Judge Lady Justice Arden)

The Judge also held however that there may be some circumstances where a deprivation of liberty arises and needs to be authorised. In NHS Trust I v G [2015] for example, a hospital sought authorisation to deprive a pregnant woman of her liberty. The order prevented her from leaving the delivery suite and authorised invasive medical treatment such as a caesarean section.

Any treatment, therefore, for a primary condition which is a physical condition will not constitute a deprivation of liberty where the same treatment would be given to a patient who had capacity.

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