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5.1.4 Deprivation of Liberty Safeguards

AMENDMENT

This chapter was updated in October 2016.


Contents

  1. Legislative Background and Purpose
  2. Who is Covered by the Safeguards?
  3. When can someone be Deprived of their Liberty?
  4. How do the Safeguards Relate to the Mental Capacity Act 2005?
  5. What does the Mental Capacity Act mean by 'Restraint'?
  6. Care Homes and Hospital Settings
  7. Domestic Settings
  8. How and when can Deprivation of Liberty be Applied for and Authorised?
  9. Out of Area Placements
  10. Urgent Authorisation
  11. Supervisory Body Arrangements in Brighton & Hove and Relationship with NHS Brighton & Hove
  12. Brighton & Hove City Council In-house Provision
  13. The Role of Independent Mental Capacity Advocates (IMCA)
  14. The DoLS Assessment Process
  15. Professional Standards
  16. Mental Health Assessors
  17. The Best Interests Assessment
  18. Eligibility Assessment
  19. Authorisation Process
  20. The role of Relevant Person's Representative
  21. Reviews of Deprivation of Liberty Authorisation
  22. Unauthorised Deprivation of Liberty
  23. How will the DoLS be monitored?
  24. Administrative Systems
  25. Equalities Impact Assessment
  26. DoLS and Safeguarding Adults
  27. Legal Advice

    Appendix 1: DoLS End to End Process


1. Legislative Background and Purpose

The Deprivation of Liberty Safeguards (DoLS) were introduced on 1st April 2009 via the amended Mental Health Act 2007. They provide legal protection where restrictions in freedoms for individuals are assessed as necessary to provide the care needed. An assessment must be made as to whether the living and care arrangements made for a person who does not have capacity to consent to those arrangements do or may amount to a deprivation of Liberty. If they do, then this must be authorised through The Deprivation of Liberty process. The Safeguards only apply to people, who are currently resident in hospitals (both acute medical, hospices and psychiatric) or care homes registered under the Care Standards Act 2000. They do not apply to people detained under the Mental Health Act 1983.

There is a different process for people living in domestic settings such as their own homes, supported living or shared lives. If their care arrangements may or do amount to a deprivation of Liberty, this can only be authorised by the Court of Protection.

The Safeguards came into being due to the European Court of Human Rights ruling in 2004 on the Bournewood case which highlighted the need for additional safeguards for people who lack capacity and might be deprived of their liberty. The Bournewood case concerned an autistic man with severe learning disabilities who was informally admitted to Bournewood Hospital in Surrey under common law. The European Court of Human Rights found that he had been deprived of his liberty unlawfully, because of a lack of a legal procedure that offered sufficient safeguards against arbitrary detention and speedy access to a court. The Deprivation of Liberty Safeguards closed the 'Bournewood Gap' and ensure compliance with the European Convention on Human Rights.

This guidance contains key features of the Deprivations of Liberty Safeguards and includes guidance to promote compliance with the legislation and protect the rights of people who lack capacity to consent to the arrangements in place. It is to be viewed as a supplement to, not a replacement for, the Deprivation of Liberty safeguards statutory Code of Practice and Regulations, or the Mental Capacity Act (MCA) 2005 Code of Practice.

The MCA principles of supporting a person to make a their own decision as far as possible, and acting at all times in the person's best interests and in the least restrictive manner, will apply to all decision-making I when following the procedures.

The MCA DOLS cover:

  • How an application for authorisation should be applied for;
  • How an application for authorisation should be assessed;
  • The requirements that must be fulfilled for an authorisation to be given;
  • How an authorisation should be reviewed;
  • What support and representation must be provided for people who are subject to an authorisation; and
  • How people can challenge authorisations.

Their purpose is to secure independent professional assessment of:

  1. Whether the person concerned lacks the Capacity to make his/her own decision about whether to be accommodated in the hospital or care home for care or treatment; and
  2. Whether it is in his/her best interests to be accommodated under those arrangements.


2. Who is Covered by the Safeguards?

These safeguards apply to people in England and Wales who have a mental disorder (as defined by the Mental Health Act 2007) and lack capacity to consent to the arrangements made for their care and treatment, but for whom receiving care and treatment in circumstances that amount to a deprivation of liberty may be necessary to protect them for harm and appears to be the less restrictive option and in their best interests. These safeguards only apply to people in a hospital setting (acute medical, hospices and psychiatric) or a care home registered under the Care Standards Act 2000. The safeguards do not authorise the actual care or treatment, but the arrangements that are in place for the purpose of providing that care or treatment. Care and Treatment can only be given with consent, or in accordance with the Mental Capacity Act principles for people that lack Capacity. This issue is covered in 5.10-5.13 of the DoLS Code of Practice.

These safeguards only relate to people aged 18 or over in residential, nursing and hospital placements. The Children Act 1989, Mental Health Act 1983 or an application to the Court of Protection should be considered if issues of deprivation liberty occur for people under the age of 18. A Deprivation of Liberty in a domestic setting (e.g. person’s own home, shared lives or Supported living) can only be authorised through an application to the Court of Protection, and applies to situations where the arrangements are imputable to the state.


3. When can someone be Deprived of their Liberty?

  • When the Person lacks the capacity to consent to the arrangements made for their care or treatment;
  • If the arrangements are in their best interests to protect them from harm;
  • If it's a proportionate response to the likelihood and seriousness of harm;
  • If there is no less restrictive alternative;
  • If it is recommended by the Best Interests Assessor following the DoLS assessment process and has been authorised by the Supervisory Body.

The ‘Acid Test’ for determining deprivation of Liberty

The Supreme Court has clarified (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights where the person:

  • Is under continuous supervision and control; and
  • Is not free to leave; and
  • Lacks Capacity to consent to these arrangements.

The Court held that factors which are NOT relevant to determining whether there is a deprivation of liberty include:

  • The person’s compliance 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.

This test commonly known as the ‘acid test’ is far broader than those set by previous judgements - disabled people should not face a tougher standard for being deprived of their liberty than non-disabled people.

Please see Law Society Guidance on Deprivation of Liberty.

Authorising a Deprivation of Liberty

The DoLS process for obtaining a standard authorisation or urgent authorisation must be used where individuals lacking Capacity to consent to the arrangements are or may be deprived of their liberty in a hospital or care home.

The Court of Protection can also make an order authorising a deprivation of liberty; (which is the only route available for authorising deprivation of liberty in domestic settings such as supported living arrangements) An application to the Court of protection may also be needed for complex cases in hospital and/ or care home settings. Seek legal advice as needed.

Individuals may also be deprived of their liberty under the Mental Health Act if the requirements for detention under that Act are met.


4. How do the Safeguards Relate to the Mental Capacity Act 2005?

The safeguards are an addition to the Mental Capacity Act and as such any decisions made must be subject to the provisions and the five key principles of the MCA:

  • A person must be assumed to have Capacity unless it is established that he/she lacks Capacity;
  • A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success;
  • A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision;
  • An act done, or decision made, under this Act for or on behalf of a person who lacks Capacity must be done, or made, in his/her best interests;
  • Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.


5. What does the Mental Capacity Act mean by 'Restraint'?

The Brighton & Hove Mental Capacity Act 2005 Policy states that:

"Section 5 MCA permits, under certain conditions, the use of restraint in order to provide care or treatment which is judged to be in the best interests of a person assessed not to have Capacity in relation to the treatment/care decision.

Restraint is defined as the use, or threat, of force where a person who lacks Capacity resists, or any restriction of liberty or movement whether or not the person resists.

Restraint is only permitted if the person using it reasonably believes it necessary to prevent harm to the person who lacks Capacity, and if the restraint used is a proportionate response to the likelihood and seriousness of the harm (MCA COP 6.40-48)

Section 6 of the MCA sets out limitations on acts of care or treatment which can be carried out under S5 (COP 6.49-6.53). Acts which include disproportionate restraint, or amount to a deprivation of liberty within the meaning of Article 5 (1) of the European Convention on Human Rights, are not protected from liability."

Consideration should be given when the restraint or restriction is frequent, cumulative and on-going, or if other factors are present then care providers should consider whether this has gone beyond permissible restraint.

The Deprivation of Liberty Safeguards Code of Practice discusses restraint in 2.8-2.12. The key points are that:

  • Restraint is appropriate when it is used to prevent harm to the person who lacks Capacity and it is a proportionate response to the likelihood and seriousness of harm. Where the restriction or restraint is frequent, cumulative and on-going, or if there are other factors present, then care providers should consider whether this has gone beyond permissible restraint as defined in the Mental Capacity Act.
  • Locking a door to guard against immediate harm is unlikely to amount to a deprivation of liberty.

Section 5 of the Mental Capacity Act (Chapter 6 of the MCA Code of Practice) allows carers, healthcare and social care staff to carry out certain tasks without fear of liability, if the principles of the Mental Capacity Act have been appropriately applied, and the act(s) are carried out in the person’s best interests.

These tasks involve the personal care, healthcare and treatment or people who lack Capacity to consent to them. Section 5 does not protect against negligence.

The Care Act 2014 references compliance with the principles underpinning and enshrined in the Mental Capacity Act throughout. In relation to minimising and authorising deprivation of Liberty for people who lack capacity, there is a specific requirement for planned restrictions and restraints to be documented and reported to a Social Worker to agree. Care and Support Statutory Guidance issued under the care Act 2014 states (10.67)

“ In line with the least restrictive principle in the MCA, local Authorities and others drawing up plans, must minimise restrictions and restraints on the person as much as possible. The MCA provides legal protection for acts of restraint only if the act is necessary to prevent harm, a proportionate response to the likelihood of the person suffering harm, and the seriousness of that harm, and in the person’s best interests. Planned restrictions and restraints to be documented and reported to a Social Worker to agree. Disagreements should be resolved through formal best interest meetings, involving a wide range of people, including family members and/or an advocate to support and represent the person.”


6. Care Homes and Hospital Settings

Care homes and hospital wards have responsibilities under DoLS to ensure that none of their residents/patients are unlawfully deprived of their liberty; that is, without the appropriate authorisation.

6.1 Local Authority (Supervisory Body) Role

  • DoLS authorisations will be issued, where appropriate, following statutory assessments by the DoLS Service. Local authorities have responsibilities under the safeguards to;
  • Carry out the functions of the Supervisory Body as detailed in the DoLS Code of Practice. This includes;
  • Receiving requests for authorisations from care homes and hospitals;
  • Commissioning statutory assessments, and granting Deprivation of Liberty authorisations where appropriate.

The Safeguards also apply to privately arranged care, i.e. self-funded residential care.

Local authorities have a responsibility to protect the human rights of all vulnerable people, particularly in reference to these safeguards of those who may be at risk of deprivation of liberty, i.e. people who have variable or no capacity to decide where they should live and also require substantial restraint/restrictions as part of their Care Plan.

The Department of Health advice note (March 2014) stated that relevant staff in local authorities and care providers should ‘take steps to review existing care and treatment plans for individuals lacking Capacity to determine if there is a ‘deprivation of liberty’ in the light of the Supreme Court ruling. Where people are deprived of their liberty – and this is judged to be in their best interests – this must be authorised.

Whilst not a substitute for legal advice where needed, 39 Essex Street have also issued guidance:

Mental Capacity Law Guidance Note - Deprivation of Liberty after Cheshire West: key questions for social workers and medical practitioners

Mental Capacity Law Guidance Note - Deprivation of Liberty in the Hospital Setting

6.2 Conveyance to Hospital or a Care Home

Transporting a person who lacks capacity from their home or another location to a hospital or care home will not usually amount to a deprivation of liberty. Even if a DoLS authorisation will be in place at the receiving hospital or care home it is unlikely that the journey will constitute a deprivation and can take place under the broader provisions of the Mental Capacity Act.

However, in a very few cases, there may be exceptional circumstances where the arrangements to transport a person may amount to a Deprivation of Liberty, in which case it may be necessary to seek an order from the Court of Protection to make sure the journey is taken on a lawful basis. (MCA DoLS Code of Practice 2.15). Practitioners, in consultation with families where involved should carefully consider different and less restrictive options as part of the assessment and care planning process with the aim of reducing restrictions as far as possible any associated distress to or difficulty for the person. If an application to the Court of Protection is still considered necessary, legal advice should be sought. Details of the different and preferred less restrictive options will be included in the application.


7. Domestic Settings

The Supreme Court has held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This will include a placement in a supported living arrangement in the community. Where there is, or is likely to be, a deprivation of liberty in such placements must be authorised by the Court of Protection. If a practitioner or service provider identifies a possible deprivation in a domestic setting, a referral should be made to the Team commissioning the care, and legal advice sought.


8. How and when can Deprivation of Liberty be Applied for and Authorised?

The safeguards created the roles of Managing Authorities and Supervisory Bodies. References in this policy to The Supervisory Body will refer to Brighton & Hove City Council.

Registered care homes and hospitals act as Managing Authorities and are required to identify people within their care whom they feel may come within the scope of the safeguards. Prior to issuing an Urgent Authorisation or requesting a Standard Authorisation, Managing Authorities must ensure that deprivation of liberty is a last resort and that all alternative less restrictive options have been exhausted. DoLS Code of Practice 3.6. NB Since the publication of the Code, the Primary Care Trust no longer acts as a Supervisory Body, and requests for authorisation for people in hospitals as well as Care Homes must go to the Local Authority.

The Managing Authority should use the prescribed forms (Urgent Authorisation and Request for a Standard Authorisation) and submit these to the Supervisory Body.

The Managing Authority must inform the Relevant Person's friends, family and / or carers if they are making a request for a DoLS authorisation. The Managing Authority must inform the Supervisory Body if they have identified that the relevant person is un-befriended and meets the eligibility criteria for an IMCA.

Managing Authorities should ensure they send the forms to the responsible Supervisory Body where the Relevant Person is ordinary resident. If the Managing Authority is unsure as to the Relevant Person's ordinary residence then they should send the forms to their local Supervisory Body and advise them of their uncertainty.

In Brighton & Hove there is a single referral point for all Managing Authorities; both care homes and hospitals which is the Access point Tel: 01273 295555, E-mail: Dols@brighton-hove.gov.uk.

Supervisory Bodies are responsible for considering requests for authorisations, commissioning the assessments and, when required, authorising the deprivation of liberty. Managing Authorities should have their own policies and procedures relating to the Mental Capacity Act, Deprivation of Liberty Safeguards and Safeguarding Adults at Risk for organising their authorisation requests.

Managing Authorities are reminded of their responsibilities to report DoLS applications, and their outcomes to the Care Quality Commission. Further information relating to this statutory duty can be found on the Care Quality Commission website.

If a service user dies when they are subject to a Deprivation of Liberty Safeguards then the managing authority must reported this to Her Majesty's Coroner.


9. Out of Area Placements

If the Relevant Person is deprived of their liberty in a care home then the Supervisory Body will be the Local Authority which commissions their care. For a hospital setting the Supervisory Body will be the local authority where the person is ordinarily resident. The DoLS Code of Practice 3.3 gives guidance about Ordinary Residence and when the 'placing' local authority or CCG retains responsibility for the service user or patient.

The Council and CCG have significant numbers of service users placed in 'out of area' care. These include service users in residential and nursing home placements funded by both the Council and the CCG, patients ordinarily resident in Brighton & Hove and patients registered with GPs in Brighton & Hove receiving in-patient care in hospital outside of the Brighton & Hove boundaries.

A protocol for Out of Area Placements for Deprivation of Liberty Safeguards was produced by the Association of Directors for Adult Social Services (ADASS and a protocol for collaborative arrangements was previously agreed with colleagues in East and West sussex. However following the significant increase in requests for authorisations since the Supreme Court Judgement in March 2014, Brighton and Hove, along with many other authorities, do not have sufficient numbers of employed Best Interest Assessors to meet the demand. As a result, in BHCC Independent or agency best Interest assessors are being commissioned to carry out the assessments, and the reciprocal arrangements are not being applied.


10. Urgent Authorisations

Managing Authorities can issue themselves with Urgent Authorisations if a deprivation of liberty is unavoidable and needs to commence before a Standard Authorisation can be obtained.

Managing Authorities must apply for a Standard Authorisation in addition to completing the standard forms for an Urgent Authorisation. They must only be issued in the belief that the Relevant Person will likely meet the qualifying requirements for the Standard Authorisation.

The Managing Authority must complete the forms with as much detail as possible focusing in particular on the type and frequency of restrictions, what actions have been taken to avoid a deprivation of liberty and how they have considered delivering care interventions in alternative less restrictive ways.

The time that the Urgent Authorisation will last cannot not exceed seven days unless an extension of a further 7 days is agreed by the Supervisory Body. The Managing Authority must consult and take into account the views of carers, friends and family members but be mindful that the decision to complete an Urgent Authorisation belongs to the Managing Authority and must be taken in the Relevant Person's best interests.

An Urgent Authorisation does not grant the authority to convey a patient and this matter might warrant separate consideration under the best interests framework of the Mental Capacity Act. See Section 6.2, Conveyance to hospital or a care home.

In addition to the above an Urgent Authorisation can be used to facilitate discharge from an acute hospital (medical & psychiatric) to a care home. Given that these are planned discharges following assessment in ordinary circumstances an application for a Standard Authorisation should be considered in the first instance. Consideration will need to be given as to whether this might prolong the relevant person’s stay in an acute hospital and whether this is in their best Interests Best endeavours will be made to carry out DoLS assessment in the shortest possible time frames in receipt of an Urgent Authorisation.

An urgent authorisation will terminate at the end of the period for which it is given and this is usually seven days. In exceptional circumstances this can be extended for a maximum of 14 days by the Supervisory Body. It will also terminate if the Supervisory Body concludes that there is no deprivation of liberty. The DoLS Code of Practice gives further detail about grounds for an extension and the issues for consideration.


11. Supervisory Body Arrangements in Brighton & Hove and Relationship with NHS Brighton & Hove

In Brighton & Hove it has been agreed that the DoLS service will be run from a single point of contact. All DoLS enquiries and requests for authorisations whether the relevant person is accommodated in a care home or hospital will be made to:

Access Point:
Tel: 01273 295555
E-mail: Dols@brighton-hove.gov.uk.

This referral route will be available between 9-5 on Monday to Friday. DoLS enquiries and referrals will be passed to a member of the DoLS team for a decision regarding the most appropriate course of action. In some circumstances this may involve consultation with the managing authority and other parties as appropriate as to whether assessment is the appropriate course of action. This is not a ‘screening’ process. See DoLS Code of Practice 3.17.

They may consider as to whether the relevant person should be assessed under the Mental Health Act 1983.


12. Brighton & Hove City Council In-house Provision

Brighton & Hove City Council operates registered care homes across care several care groups and in these cases would act as both Managing Authority and Supervisory Body. If a Brighton & Hove City Council run care home were to apply for a Standard Authorisation or issue itself with an Urgent Authorisation then a Best Interests Assessor employed by the Council cannot be used due to a conflict of interest as the Council act as both a Managing Authority and Supervisory Body.

Best Interest Assessors employed by Sussex Partnership NHS Foundation Trust via the Council's partnership arrangements in integrated mental health and learning disability services can carry out assessments at Brighton & Hove City Council in-house care homes. In their absence colleagues in East and West Sussex would be approached to provide an assessor to meet the conflicts of interests requirements, or an Independent Best Interest Assessor will be commissioned.


13. The Role of the Independent Mental Capacity Advocate (IMCA)

The role of the IMCA originally introduced under the Mental Capacity Act 2005 has been extended for the Deprivation of Liberty Safeguards. The role and qualifying requirements for an IMCA can be found in the Code of Practice for the Mental Capacity Act and Chapter 14 of the Brighton & Hove City Council Mental Capacity Act Policy.

The Managing Authority is obliged to inform the Supervisory Body if an IMCA is required and the Supervisory Body must instruct an IMCA in a timely manner to ensure the Relevant Person is appropriately represented especially if an Urgent Authorisation has been given. There are additional rights and responsibilities of an IMCA under the DoLS safeguards and these are:

  • As they consider appropriate, give information or make submissions to assessors, which assessors must take into account in carrying out their assessments;
  • Receive copies of any assessments from the supervisory body;
  • Receive a copy of any standard authorisation given by the supervisory body;
  • Be notified by the supervisory body if they are unable to give a standard authorisation because one or more of the deprivation of liberty assessments did not meet the qualifying requirements;
  • Receive a copy of any urgent authorisation from the managing authority;
  • Receive from the managing authority a copy of any notice declining to extend the duration of an urgent authorisation;
  • Receive from the supervisory body a copy of any notice that an urgent authorisation has ceased to be in force;
  • Apply to the Court of Protection for permission to take the relevant person's case to the Court in connection with a matter relating to the giving or refusal of a standard or urgent authorisation (in the same way as any other third party can).

If the Relevant Person is subject to a Deprivation of Liberty authorisation then they are required to have an appointed representative. In the absence of this role then an IMCA can be instructed to meet the gap whilst another is appointed. An IMCA can also be instructed if the relevant person or their representative requests their assistance or a Supervisory Body feels that appointing one will ensure the relevant person's rights are protected.

POhWER have been contracted by the Sussex Local Authorities to provide the IMCA Service across Sussex. Their contact details are:

POhWER IMCA,
PO Box 14043
Birmingham
B6 9BL
Telephone: 0300 456 2370
Fax: 0300 456 2365
Minicom: 0300 456 2364

E-mail: pohwer@pohwer.net

In addition to the IMCA role POhWER will provide the role of 'Paid Representative' in the absence of a suitable Relevant Person's Representative. Referral forms for both these roles are on the prescribed forms as provided by the Department of Health.

POhWER will expect referrals to the IMCA service to be made on the specific POhWER referral form which has been widely circulated locally and which can be found on the POhWER website.


14. The DoLS Assessment Process

On receipt of a request for a Standard Authorisation, assessments must be completed within 21 days. When an Urgent Authorisation has been completed the assessment process must be completed before this expires. This will be a maximum of seven days unless an extension of the Urgent Authorisation has been agreed.

There are six DoLS assessments which are:

  • Age assessment;
  • No refusals assessment;
  • Mental capacity assessment;
  • Mental health assessment;
  • Eligibility assessment;
  • Best interests assessment.

Best Interests Assessors will be instructed to coordinate the assessment process on behalf of the Supervisory Body. There must be a minimum of two assessors (if all assessments are completed) and the Best Interests Assessor and mental health assessor must be different.

Best Interests Assessors must not be directly involved in the care or treatment of the person they are assessing nor in decisions about their care. Additionally they should not be in a line management relationship with the professional proposing the deprivation of liberty or a mental health assessor. Additionally the Supervisory Body should be mindful that the Best Interests Assessor has appropriate experience of the service user group and any cultural or communication needs which need consideration.

Local arrangements are that the the Best Interests Assessor will complete the age, no refusal, mental capacity and best interest's assessments. If the Best Interests Assessor is an Approved Mental Health Professional then they can undertake the eligibility assessment.

If the Best Interests Assessor is not an Approved Mental Health Professional then the eligibility assessment will be completed by the mental health assessor (Section 12 MHA Approved Doctor) in addition to the mental health assessment.


15. Professional Standards

The DoLS Regulations requires Local Authorities to appoint sufficient Best Interests Assessors to meet local needs.

In addition the regulations stipulate that Best Interests Assessors are required to complete on-going training specific to this role to ensure they remain eligible to practice. Within Brighton & Hove this is provided by a combination of Best Interests Assessor meetings,and Sussex wide Best Interests Assessors Forums, practice development groups, and annual update training provided by the Local Authority in conjunction with Brighton University.

It is expected that Best Interests Assessors will maintain an appropriate level of awareness and expertise in order to continue to practice and will meet the standards required of both their employing organisation and their professional body when carrying out the role.


16. Mental Health Assessors

Sussex Partnership NHS Foundation Trust has been contracted across Sussex to provide the mental health and eligibility assessments for DoLS. This will be provided by their Section 12 (MHA 83) approved doctors. Sussex Partnership NHS Foundation Trust are responsible for ensuring that the assessors appointed meet the eligibility criteria to be mental health and eligibility assessors and they have relevant experience of the requested client group for assessment.

Sussex Partnership NHS Foundation Trust has set up a central telephone point to access a mental health assessor. This number is:

Tel: 01903 843253 or 01273 716576.


17. The Best Interests Assessment

Once it is established that deprivation is occurring or is likely to occur a full assessment should be started. The Best Interests Assessor must:

  • Take into account the views of the relevant person, family and/or significant others, carers, anyone interested in the person's welfare, donee's or deputies;
  • Name of all those people who have been consulted;
  • Take into account he views of the mental health assessor;
  • State the maximum authorisation period of the authorisation-not longer than 12 months. Whilst considering the length of the authorisation Best Interests Assessors should take into account the time required for specific care planning tasks which may be relevant for a change of placement, discharge from hospital or to reduce the change of a DoLS occurring / and or as a result of the DoLS assessment and conditions attached to the Standard Authorisation. Additionally Best Interests Assessor should consider whether repeated short authorisations and subsequent repeated assessment processes are in the Relevant Persons best interests;
  • Provide a report which either supports or declines deprivation with reasons;
  • May recommend conditions These must directly relate to the issue of deprivation of liberty and best Interests, and may for example: relate to contact, culture and avoiding deprivation in the future;
  • Recommend someone to be the Relevant Person's Representative.

The Department of Health in their 2010 DoLS report gave further guidance relating to the setting of conditions for the Standard Authorisation in addition to what can be found in the DoLS Code of Practice. The Social Care Institute for Excellence has also provided a report, updated in August 2014 “ Deprivation of Liberty safeguards: Putting them into Practice" which describes good practice in the management and implementation of the safeguards.

"There is evidence that the Code's guidance in relation to the setting of conditions is not being adhered to. Paragraphs 4.74.and 4.75 of the Deprivation of Liberty Safeguards supplement to the Mental Capacity Act 2005 Code of Practice state:

The best interests assessor may recommend that conditions should be attached to the authorisation. For example, they may make recommendations around contact issues, issues relevant to the person's culture or other major issues related to the deprivation of liberty, which - if not dealt with - would mean that the deprivation of liberty would cease to be in the person's best interests. The best interests assessor may also recommend conditions in order to work towards avoiding deprivation of liberty in future. But it is not the best interests assessor's role to specify conditions that do not directly relate to the issue of deprivation of liberty.

Conditions should not be a substitute for a properly constructed care plan. In recommending conditions, best interests assessors should aim to impose the minimum necessary constraints, so that they do not unnecessarily prevent or inhibit the staff of the hospital or care home from responding appropriately to the person's needs, whether they remain the same or vary over time. It would be good practice for the best interests assessor to discuss any proposed conditions with the relevant personnel at the home or hospital before finalising the assessment, and to make clear in their report whether the rejection or variation of recommended conditions by the supervisory body would significantly affect the other conclusions they have reached."

Best interests assessors need to recommend and supervisory bodies to set conditions that reflect the advice in the supplement to the Code and not, as has been reported to the Department, recommend and set conditions that otherwise could have been achieved by effective care plans."

In addition Best Interests Assessors need to be cautious that conditions recommended and agreed by the Supervisory Body do not incur a financial cost for the Managing Authority without discussion or place contractual arrangements on a third party organisation without their consent.

Best Interests Assessors are advised to be mindful of the relationship between DoLS assessments / process and longer term care planning. Whilst the DoLS assessment is a stand alone assessment to determine whether the relevant person's care meets the criteria for the safeguards at that particular time and is in their best interests there is a clear relationship between the outcome and an on-going care plan. This is particularly evident in the length of the authorisation and the conditions; where both issues may depend on actions taken outside of the DoLS process by for example an assessment team or a hospital in-patient multi-disciplinary team.


18. Eligibility Assessment

The eligibility assessor must be either a Section 12 Doctor or a Best Interest Assessor who is also an Approved Mental Health Assessor (AMHP). Their role is to determine whether the person is ‘ineligible’ Dols because they are liable to be detained under the Mental Health Act 1983 or whether the Deprivation of Liberty would conflict with a requirement imposed on them under a Community Treatment Order, or Guardianship Order.

Since the Deprivation of Liberty Safeguards have been in use, the eligibility assessment has gained much attention. When a person who lacks capacity to consent to being admitted to, or remaining in hospital for treatment for their mental health, and is objecting, this is a strong pointer that the Mental Health Act 1983 should be used. However if the person’s circumstances are such that there is a ‘genuine‘ choice between the 2 regimes this must be clearly described /evidenced and a judgement must be made about what is best for that person. This remains a complex area of practice and Law, and where there is a real dispute, it may be necessary to seek a decision from the Court of Protection.

Critically, the relevant person must not be Deprived of their Liberty and left in a situation where they do not have the protection of either regimes. Best Interests and eligibility assessors should discuss and seek to resolve any differences of opinion to ensure this does not happen.


19. Authorisation Process

If all the assessments conclude that the relevant person meets the requirements for authorisation and all the assessments have been completed and passed to the Supervisory Body then a Standard Authorisation must be agreed. The Supervisory Body has to agree the conditions and length of authorisation.

Brighton & Hove City Council has a pool of DoLS signatories who represent the Local Authority.

Nominated signatories o will be approached to authorise the outcome (Best interests assessors recommendation) of the request for an authorisation, having considered the assessments and information provided. The authoriser will complete the relevant form i.e. Standard Authorisations Granted / Not Granted, and ceasing of authorisations.

Best Interests Assessors can complete the forms for appointment of a Relevant Persons Representative.

The nominated signatories of the Supervisory Body must be approached in a timely manner to complete the required paperwork. The authoriser must be given sufficient evidence to understand how the Best Interest assessor has reached their decision. The authoriser may need to seek further clarification from the Best Interest assessor, and could request the assessor to revisit, or only agree a very short authorisation with specific recommendations attached.

The Supervisory Body must set the period of the authorisation which may not be longer than that recommended by the Best Interests Assessments and it cannot exceed 12 months. Consideration should be given to ensuring the length of the authorisation is proportionate to any care planning actions required within the length of the authorisation and the impact on the relevant person of being subjected to repeated assessments over a relatively short period of time.

The Supervisory Body cannot give an authorisation if one of the assessments requirements has not been fulfilled and the assessment process should stop immediately. In this case the Supervisory Body must still complete Standard Authorisation Not Granted.

The Supervisory Body may attach conditions to the authorisation and must consider those recommended by the Best Interests Assessor. If the Supervisory Body does not attach the conditions recommended by the Best Interest Assessor, this should be discussed with the Best Interests Assessor in case the variation or rejection alters their conclusion and recommendation around deprivation of liberty.

A Standard Authorisation cannot be transferred to another hospital or care home and an application for a new Standard Authorisation must be made before a move takes place.

If a request for an authorisation is turned down then the Managing Authority will need to ensure that an unauthorised deprivation of liberty is not taking place and alter the care accordingly.

The Council and CCG will need to ensure that that care can be provided and purchased in a way that makes it possible for Managing Authorities to avoid deprivation of liberty when a request for a Standard Authorisation is turned down.


20. The Role of the Relevant Person's Representative

Supervisory Bodies must appoint the Relevant Person's Representative as soon as possible and practical to represent the person who has been deprived of their liberty.

The role is to:

  • Maintain contact with the relevant person;
  • To represent and support the relevant person in all matters relating to the Deprivation of Liberty Safeguards including triggering a review, using an organisation's complaints procedure or making an application to the Court of Protection.

This role is crucial to the deprivation of liberty process and allows the Relevant Person to be represented and supported in a manner that is independent of the care provider and the Supervisory Body.

There are eligibility criteria attached the position of Representative which include:

  • 18 years of age or over;
  • Able to keep in contact with the Relevant Person;
  • Willing to be appointed;
  • Be able to represent the person in all matters related to the authorisation including supporting a challenge to the court of protection should the deprived person object to the arrangements in place regardless of Representative’s view of how rational or reasonable the objection is.

The Best Interests Assessor should start to identify the Representative during the assessment process and discuss the role as part of this process.

The Best Interests Assessor should establish whether the Relevant Person has the capacity to select their own representative and invite them to do so. If the Relevant Person does have capacity and selects an individual then the Best Interest Assessor must appoint them to the role.

If the Relevant Person lacks capacity and there is a donee or deputy with relevant authority they may select the person appointed to the role and the Best Interests Assessor must recommend that person is appointed.

The Best Interests Assessor must not select a representative where the Relevant Person, if they have capacity in relation to this decision, or a donee or deputy acting within their role states that they are not content with that selection.

The Best Interests Assessor must establish eligibility of the person to be appointed. If there is no person available to take on this role then the Supervisory Body must appoint a professional to take on this role.

POhWER has been commissioned to provide the role of professional Relevant Person Representative (Paid Rep) where there is no-one else eligible to appoint.

Their contact details are:

POhWER IMCA,
PO Box 14043
Birmingham
B6 9BL
Telephone: 0300 456 2370
Fax: 0300 456 2365
Minicom: 0300 456 2364

E-mail: pohwer@pohwer.net

The Representative must confirm in writing that they are willing to accept the appointment on the prescribed Appointment of a Representative.

The Representative must be able to have face-to-face contact with the Relevant Person. Managing Authorities should keep records on the frequency of visits and appropriate contact. Supervisory Bodies can terminate the appointment if required but must be sure to exercise discretion and treat each case on its merits.

If there is a gap between the authorisation of the deprivation and the appointment of a Representative then the Supervisory Body must appoint at IMCA for this period.

Both the Relevant Person deprived of their liberty and their representative have a statutory right to an IMCA if they request one. In the Department of Health's 2010 DoLS report, a national under referring of IMCAs for this role was noted. Best Interests Assessors are advised to consider whether appointing an IMCA would be of benefit to the Relevant Person and their RPR in supporting their role. Both the Relevant Person and their Representative must be informed about the IMCA service and their right of access.

The Department of Health's report identified that family members were not being selected as Relevant Persons Representatives because they were not supportive of the deprivation of liberty. This alone is not grounds for not selecting them for the role. A recent Court of Protection Judgement (AJ 2015) has highlighted that it may not be appropriate to appoint a family member who is supportive of the placement as this may conflict with their role in supporting the person to challenge the DoL via an application to the Court of Protection.

In addition to discussion with and explanation from the Best Interests Assessor, proposed Relevant Persons Representatives should be sent information regarding the role. In BHCC this is done at the point of formally approaching the proposed representative by letter of appointment. The Department of Health published several documents suitable for distribution for Relevant Persons Representative, families and carers #including an easy read version.


21. Reviews of Deprivation of Liberty Authorisations

When someone is deprived of their liberty and a Standard Authorisation granted. The Managing Authority has a duty to ensure conditions are met and ascertain whether the Relevant Person's needs have changed and therefore might no longer meet the criteria for deprivation of liberty.

If a review is requested by the Relevant Person, their Representative or the Managing Authority then the Supervisory Body must carry one out.

There are statutory grounds for review and these are:

  • The Relevant Person no longer meets the age, no refusals, mental capacity, mental health or best interests requirements;
  • The Relevant Person no longer meets the eligibility requirement because they object to receiving mental health treatment in hospital and meet the criteria for an application for Section 2 or 3 of the Mental Health Act 1983;
  • There has been a change in the Relevant Person's situation and the conditions attached require changing and the situation needs a review;
  • The reasons the persons now meets the qualifying requirements are different from those given at the time the authorisation was granted.

The Supervisory Body must tell the Relevant Person, their Representative and Managing Authority if they are going to carry out a review.

Deprivation of liberty can be ended before a formal review. Although an authorisation permits deprivation it does not mean that deprivation must take place where circumstances no longer require it. In these circumstances the Managing Authority should apply for a review.

When a Supervisory Body receives a request for a review it must decide which of the qualifying requirements need to be reviewed.

If none of the qualifying requirements need to be reviewed then no further action is necessary.

If certain elements of the DoLS process do require review then the standard assessment procedure should be followed.

When a decision is made that the best interests assessment should be reviewed solely because the conditions attached to the authorisation need to be changed and there is little evidence of a significant change in the overall circumstances there is no need for a full Best Interests reassessment. The Supervisory Body can simply vary the conditions attached to the authorisation as appropriate. If the review relates to any other requirements or there is a substantial change then new assessments must be obtained. Best practice would suggest that a fresh Best Interests Assessment is undertaken and to date this is local practice. This is not a mandatory activity and must be a proportionate decision.

If the requirements are not met following a review then the authorisation is terminated immediately and written notice will be given by the Supervisory Body. There are prescribed forms for the review purpose.

Standard Authorisations can be suspended if the eligibility requirement is not met for a short period of time other than the Relevant Person is objecting to mental health treatment in hospital. If the Relevant Person is detained under the Mental Health Act the authorisation can be suspended for a period of up to 28 days.

It is the responsibility of the Managing Authority to request a further Standard Authorisation if they feel the Relevant Person still needs to be deprived of their liberty. The Managing Authority must be mindful to apply prior to the existing authorisation expiring but not too far in advance for the assessments to be rendered invalid. Local practice is to take an assertive approach to managing on-going Standard Authorisations in conjunction with Managing Authorities.

When the authorisation ends the Supervisory Body must inform all parties in writing by circulating the required forms.

The Best Interest Assessor managing the review process will be expected to complete the relevant forms and paperwork and ensure they are distributed accordingly to the relevant parties.


22. Unauthorised Deprivation of Liberty

If a Relevant Person, a relative, friend, carer or third party such as an Inspector or Advocate believe that a person is being deprived of their liberty without an authorisation in place then they should draw this to the attention of the Managing Authority. They must ask the Managing Authority to apply for an authorisation or change the care regime within 24 hours.

Managing Authorities can resolve these matters without the need for an authorisation by making adjustments that avoid deprivation of liberty but if they cannot then they should submit a request for a Standard Authorisation and complete an Urgent Authorisation as required.

If the Managing Authority does not apply for an authorisation within a reasonable time period then the concerned person can raise the matter with the Supervisory Body to decide if an unauthorised deprivation of liberty is taking place.

In these circumstances the Supervisory Body must request a best interests assessment to consider whether deprivation of liberty is occurring. The assessment does not need to take place if the request is frivolous or vexatious, or when a very recent assessment has been carried out and when the question of deprivation has been decided and there has been no change in circumstances.

The Supervisory Body must inform all parties if it has been asked to assess whether an unauthorised deprivation of liberty is taking place and whether it will be undertaking an assessment.

If a person contacts the Supervisory Body about an unauthorised deprivation of liberty then they should arrange a preliminary assessment to ascertain whether deprivation is occurring and request that the Managing Authority requests a Standard Authorisation. If the Managing Authority does not request a Standard Authorisation and the matter is unresolved then the situation must be treated like an unauthorised deprivation of liberty. This assessment must be carried out within seven days. It is to establish whether an authorised deprivation is occurring. If the assessment concludes that a deprivation of liberty is taking place then the full assessment process should take place including the issuing of an Urgent Authorisation if applicable.


23. How will the DoLS be monitored?

The Care Quality Commission has a statutory responsibility to monitor the DoLS process in registered hospitals and care homes. And will include in their reports relevant information about a registered services compliance with DoLS. Whilst CQC has no "direct" powers to enforce compliance with DoLS, they can take enforcement action for related breaches of regulations under the Health and Social Care Act.

The Care Quality Commission will visit care homes and hospitals as part of their existing programme of inspection. They can request records relating to DoLS and may interview residents or patients subject to authorisations. DoLS policies and procedures for both Supervisory Bodies and Managing Authorities can be inspected.

The Care Quality Commission produces annual reports regarding DoLS activity.

Performance information on DoLS is reported to the Department of Health via the Health and Social Care Information Centre. Annually submitted information includes number of authorisations, location, and length of time for those granted as well as demographic information. Quarterly data is also submitted to track the increase in DoLS applications over time.

An annual report regarding the use of DoLS in Brighton & Hove is submitted to the Brighton & Hove Safeguarding Adults Board. DoLS is also reported in the annual safeguarding report.

The use of both the Mental Capacity Act and DoLS within Brighton & Hove is governed by the Deprivation of Liberty Governance Group, and is additionally monitored via the multi-agency MCA / DoLS sub-group of the Brighton & Hove Safeguarding Adults Board.

There is a Sussex wide quarterly Sussex wide IMCA Contract Review meeting where IMCA activity is monitored. This includes IMCA work for DoLS and activities as Paid Representatives.


24. Administrative Systems

There is a DoLS service with an Operational lead, Senior social worker and dedicated admin support. This Team will triage requests for assessments, appoint best interest assessors and agree extensions where appropriate. A list of assessments to be signed off is sent on a weekly basis to the supervisory body so they can be allocated to authorisers. The DoLS service will maintain performance information and submit to relevant organisations as required.

The DoLS Service will ensure arrangements are in place so records are complete, stored and shared appropriately.


25. Equalities Impact Assessment

An Equalities Impact Assessment was last completed for DoLS and was signed off in August 2013 by the Equalities Steering Group and the Council's Adult Social & Health Departmental Management Team. A shorter version (Publication Template) was published on the Brighton & Hove City Council website. It is recognised that the numbers of requests and authorisations has significantly increased since that date.


26. DoLS and Safeguarding Adults

Some Local Authorities have chosen to site their DoLS service within their Safeguarding Adults Services but following the Neary judgement, it has been suggested an appropriate distance and impartiality is maintained between these two crucial decision making functions.

Within Brighton & Hove, there are dedicated Best Interests Assessors as well as rota Best Interests Assessors who sit within assessment teams across care groups including Adult Social Care Assessment Teams - both community and hospital settings, adult and older people's mental health services and community learning disability teams. When allocating Best Interests Assessors consideration is given to impartiality and expertise as per the Code of Practice.

Consideration should always be given as to whether the nature of the concerns referred or identified through the DoLS Best Interests Assessment process are such that an enquiry may need to be undertaken under S42 of the Care Act 2014.

It is the responsibility of the Best Interests Assessor to raise a safeguarding concern if it appears there are safeguarding issues that emerge in the course of the DoLS assessment process.

Where an enquiry under the Safeguarding Adults at risk of abuse or neglect procedures is commenced, there should be clear decision making as to how the DoLS assessment and other processes will be co-ordinated within that process.

Sometimes the MCA DoLS authorisation is the culmination of a lengthy dispute between the family and an NHS Trust or Local Authority about where the person should live. Paragraph 8.28 of the Mental Capacity Act 2005 Code of Practice states that a "court decision might be appropriate" where "there is a major disagreement regarding a serious decision (for example, about where a person who lacks capacity to decide for themselves should live)". The DoH was clear in their guidance that such disputes, which cannot be otherwise resolved, will require the "last resort" determination of the Court rather than being resolved via the Safeguards. Therefore consideration should be given to seeking timely legal advice and considering an application to the Court of Protection for directions.

Safeguarding enquiries will be required, at times, to consider matters of contact between a person lacking capacity and somebody that they may be at risk of harm or abuse from.

The DoLS Code of Practice in 4.74 recognises contact might be an issue in the setting of conditions. "The best interests assessor may recommend that conditions should be attached to the authorisation. For example, they may make recommendations around contact issues". This could include conditions that allow or encourage contact as well as conditions that limit or supervise contact.

It is acknowledged there may be a short-term need to rely on the conditions of an authorisation to manage no contact in such cases but paragraph 8.28 of the Mental Capacity Act 2005 Code of Practice states "a court decision might be appropriate" where "someone suspects that a person who lacks capacity to make decisions to protect themselves is at risk of harm or abuse from a named individual (the court could stop that individual contacting the person who lacks capacity)."

This Court should be the arbiter for matters of no contact and an authorisation under MCA DoLS, other than as a very short-term measure, should not be relied upon to manage no contact cases. Therefore assessment teams are advised to consider taking legal advice as soon as possible when dealing with issues around contact. They are advised that the DoLS assessment will not necessarily resolve these issues, any authorisations granted are likely to be short term and that an appropriate subjectivity and distance is maintained by the DoLS assessor from the safeguarding work as advised following the Neary judgement.

The DoH state that "case law judgements, to date, indicate that preventing contact with somebody who presents a risk of harm or abuse to a person lacking capacity does not on its own amount to a deprivation of their liberty. An authorisation should not therefore be recommended nor granted on these grounds alone." Again assessment teams are advised to seek legal advice and consider whether an application to the Court of Protection is warranted.

Cases which are subject to dispute and cannot be otherwise resolved will require the last resort determination of the Court of Protection, and should not be viewed as having been resolved via the MCA DoLS process.


27. Legal Advice

If Best Interests Assessors require legal advice when operating in this role then in the first instance they should approach the DoLS Service Operational lead for advice and case discussion. The Council legal department operates a duty system and an approach should be made via this route in E-mail format. If the matter requires a more urgent response this should be communicated via telephone.


Appendix 1: DoLS End to End Process

Click here to view Appendix 1: DoLS End to End Process.

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