Who can be an authorising signatory is not defined within Schedule A1 (69) to the Mental Capacity Act 2005 or the Regulations. However, while the limitations of the role are laid down in Schedule A1, case law has amplified and illuminated its importance. The authoriser represents the local authority, and it is a role of great responsibility. The authoriser must not be in a position of conflict (for example, they must not manage the managing authority in addition to the DoLS service).
Example from practice
One local authority has a policy that authorisers must be of sufficient seniority that they would authorise guardianship under the Mental Health Act 1983 or deputyship (Court of Protection). Their authorisers are appointed in writing by a minute of a senior governance committee. Newly-appointed authorisers are invited to shadow more experienced colleagues.
Similarly, local authorities should be aware of, and pre-empt, any conflicts of interest within their authorising roles – for example, if they, as managers who may authorise care packages, also line-manage a best interests assessor who may be asked to assess an individual who is in receipt of such a care package.
Limitations of the authoriser’s role
- A supervisory body must give a standard authorisation if all assessments support this and it has them in writing (with provisos) (Schedule A1 50(1) (a) and (b)).
- A supervisory body can shorten the time suggested by the best interests assessor but not lengthen it (Schedule A1 51 (1) (1) and (2)).
- A supervisory body must consider any conditions suggested by the best interests assessor: the authoriser may also add or remove conditions (Schedule A1 53 (1) (2)). Note that it is good practice that they consult with the best interests assessor if considering adding or removing conditions, and that the best interests assessor is allowed to request that they be informed if the authoriser removes or changes any conditions they have suggested, and if they have concerns that such a change might affect their conclusions.
- Any conditions that are set must relate solely to the deprivation of liberty and must relate to the managing authority. The managing authority must be able to comply with them (Schedule A1 53(3)).
If an assessor asserts that an ongoing situation does deprive a person of liberty but is not in their best interests, and there is no identified alternative place for the person where they would be safe, an authoriser should be alerted to the evident risks to the person’s safety if the authorisation is not granted. If this situation arises, the authoriser should discuss with the assessor the possibility of authorising deprivation of liberty for a short period, while arrangements are made for a less restrictive alternative.
DoLS example from practice
Mrs M, who has dementia, was moved from her home to a care home as an emergency following the sudden death of her husband, who had cared for her. Since she was continuously asking to go home, and unable to comprehend her husband’s death, the care home gave itself an urgent authorisation, and applied for a standard one.
When the best interests assessor visited, he found that there was a deprivation of liberty, and that it was in Mrs M’s best interests to remain in the home in the short term while other options were explored: the authorisation was granted for four weeks. When this authorisation was about to expire, the assessor re-visited, and was very concerned to find that Mrs M had not settled, and had lost a considerable amount of weight. He discussed with the authoriser and with the care home manager his view that the ongoing deprivation of liberty was evidently not in Mrs M’s best interests since she was so unhappy, although no less restrictive options for her care had been identified.
The care home manager rang the authoriser to say she would have no authority to keep Mrs M safely at the home over the weekend if the authorisation was not granted. She felt it was impossibly risky to let Mrs M, who was extremely confused, return home to an empty house: she had found that Mrs M’s daughter was away for the weekend, and unable to return home immediately to care for her mother. The authoriser consulted with the assessor and the relevant service manager, who agreed to arrange a best interests meeting (to include Mrs M and her daughter) for the following week to explore how best to ascertain and meet Mrs M’s best interests. The assessor recommended a maximum length for a subsequent authorisation of a further three weeks, and the authoriser agreed.
Scrutiny of assessments
A supervisory body would be ‘essentially passive’ if it accepted poor assessments: if not satisfied, the person in the role of authoriser could either ask the best interests assessor to re-visit, or request a review of the authorisation, or apply to court.
Decisions to be made, and documents scrutinised, by the authoriser
It is a matter for local decision whether an authoriser is used to ratify an ‘authorisation not granted’ (form 6) or not, though increasingly supervisory bodies are asking them to do so:
- in order that the authoriser can understand the reasons for the decision
- as a protection for the supervisory body since this form is described as signed on behalf of that body.
If the granting of an authorisation is recommended, authoriser will always be asked to sign form 5, ‘authorisation granted’: by doing this they create the authorisation. All the assessments are summarised or copied into this form.
Authorisers may wish to see the originals, and if so they should be easily available to them (i.e. part of the bundle of material substantiating the authorisation). If hand-written, they must be legible.
Care plans should be appended: there should be evidence of the managing authority trying to minimise restrictions, awareness of the human rights of the person, and of the principles of the MCA.
Assessors as independent professionals are responsible for their decisions, but there must be sufficient evidence for the authoriser to understand how they have reached those decisions. Authorisers must be able to gain as full a picture as possible of the assessment process, on the basis of which they are confident to authorise the deprivation of this person’s liberty. If any of the assessments fail to give evidence for the decisions made, or if it is clear that the correct process has not been carried out (for example, close relatives were available for consultation but were not approached by the best interests assessor), it is the authoriser’s responsibility to request further evidence to substantiate the decisions reached.
An authorisation for signature may contain conditions, often suggested by the best interests assessor, which are intended to reduce the restraint so that the person is no longer deprived of their liberty or to lessen the impact of the deprivation.
The conditions must relate to the issues that mean a person is deprived of liberty, rather than general matters of care management. Conditions are binding upon the managing authority, and should be matters they can achieve. Aspects of care management can, if relevant, be discussed with appropriate service managers who are outside the DoLS process, but a DoLS authorisation, or its conditions, cannot be used to enforce care management or commissioning actions.
The authoriser can add further conditions, or remove conditions suggested by the assessor. A best interests assessor can insist on being notified if conditions they have suggested are removed, since this may in certain circumstances alter their opinion about whether the authorisation remains in the person’s best interests. It is general good practice for this consultation to take place.
Jehan: DoLS example from practice
Jehan has a learning disability and physical disabilities that make it hard for him to communicate.
Staff have learned, from Jehan’s parents, that when he is stressed it calms him to play with balloons: his sign that he wants to do this is that he blows out little puffs of breath. Jehan’s care plan explains to staff that they should blow up balloons for him when he does this, and that they should also explore what might have caused him to feel stressed.
The aim of this is to enable them to reduce incidents when they have to restrain him in his best interests. The best interests assessor finds inconsistency in staff awareness of this. She suggests a condition that the managing authority monitors staff training about Jehan’s care plan, and records adherence to it. She adds the requirement that, if the authoriser removes this condition, she wants to be informed since she does not think the authorisation could be said to represent the least restrictive option and be in Jehan’s best interests, without this condition to ensure his care plan is complied with.
Checklist for authorisers
The ‘authorisation granted’ (form 5)
The authoriser’s role is to scrutinise the authorisation, to look for a convincing narrative, giving a clear picture of the person and ‘how we got to where we are’. It is not their role to overrule the findings of an assessor acting within their prescribed role who has provided evidence to justify their opinion: but the authoriser may, and should, require further evidence if that provided appears too scanty to justify action is such a serious matter as depriving fellow citizens of their liberty.
Form 5 must detail evidence of:
- the person’s past and present views and wishes
- the views of their relatives/friends or the opinion of an IMCA
- the restrictions being both necessary and proportionate
- less restrictive options having been tried/explored
- why less restrictive restrictions are not enough
- the case being made that the authorisation is proportionate to the likelihood of harm to the person and the seriousness of that harm.
Conditions relating to an authorisation
The authoriser can add or remove conditions, which must relate to reducing deprivation of liberty, not simply to better care planning. Conditions are binding on the managing authority, so must be achievable by them (rather than by others such as the commissioning authorities).
- If there are conditions, do they reduce the likelihood of the person being deprived of their liberty?
- Can the authoriser identify further conditions that might reduce deprivation of liberty?
Length of authorisation
- An authoriser can shorten an authorisation but not lengthen it.
- In such cases authorisers must clear why the period is to be shortened and what they hope to achieve by this.
The authoriser must be satisfied that there is enough evidence that this deprivation of liberty is in the person’s best interests, and that the removal of liberty is both warranted and proportionate. The authoriser should be alert to indicators of possible poor practice in case planning or practice, and should have sufficient seniority to raise these where appropriate through operational governance frameworks, including those in hospitals or CCGs.