This section applies to all registered care and nursing homes whether in the public, private or charity sector and irrespective of the groups of residents they may care for, such as older people, those with dementia, learning disability or acquired brain injury, and irrespective of how placements are funded.
The Deprivation of Liberty Safeguards (DoLS) have been in operation since 1 April 2009 and care homes and nursing homes will be familiar with the Safeguards, the Regulations, (3) the DoLS code of practice, associated guidance and forms. (20) Many will have experience of making applications, the assessment process and putting into practice an authorisation.
There are estimated to be some 450,000 people in care and nursing homes in England and Wales at any one time and it is estimated that 70–80 per cent may have dementia. (21) Many will be unable to consent, in whole or part, to their care and treatment.
In 2015–16, 195,840 deprivation of liberty applications were made, and a little over 105,000 assessments were completed. In 76,530 (73 per cent) of these, the deprivation was authorised. Of the applications, over 150,000 came from care homes. These figures compare with the roughly 11,000 applications made annually in hospitals and care homes combined prior to the 2014 Supreme Court judgement.5
However, the need to use the Safeguards in an individual home may be infrequent. It is, therefore, important that homes keep themselves familiar with the Safeguards to avoid unlawfully depriving a resident of their liberty or conversely letting a person come to harm when use of the Safeguards might have protected them.
Application of the Safeguards is variable across England. The reasons for this are unclear but it may suggest that the Safeguards are not being fully embedded in organisations or that training is inconsistent. A report on the use of the Safeguards highlights the range of training and awareness, as well as wide variations in practice concerning who can sign an urgent authorisation to deprive a patient of their liberty. (22)
As a general guide, any home caring for people with dementia, with a mental illness, with a learning disability or with an acquired brain injury should be familiar with the Safeguards. This is irrespective of the person’s age once they reach adulthood (18 years) and whatever method is used to fund their care.
Mr and Mrs S (90s): DoLS example from practice
Mr and Mrs S, both in their 90s, have been married for 70 years and are devoted to each other. She has dementia, and is very dependent on her husband for physical care; she lacks capacity to understand her care needs, and is anxious if separated from him.
Following a fall she was admitted into respite care. She was not badly hurt, but when her husband asked to take her home he was refused: this was because he persistently refused services and support (apart from their family, most of whom lived some distance away), and therefore safeguarding issues had been raised. The care home gave itself an urgent authorisation under DoLS. At the start of the assessment process it was clear that the home staff were convinced that Mrs S could never return home. In the formal assessment process that followed, they were made aware of the devastation caused to both Mr and Mrs S by these breaches of their human rights (her Article 5 right to liberty, their joint Article 8 right to a private and family life) and their view of the risks to her became more balanced within a more holistic assessment of Mrs S’s best interests.
A short period of authorisation was agreed with a condition that the care providers were committed to working with Mr S to enable his wife to return home. To strengthen his position, he was named as his wife’s representative under the Safeguards, so he felt able to visit often and advise on her care. The supervisory body appointed an IMCA under the DoLS provisions to help him understand his rights of challenge. He agreed to accept a care package at home, and Mrs S returned home, where she lived happily for a further nine months.
Organisations need to be reminded that DoLS do not provide authority to deprive a person of their liberty in a setting other than a hospital or care/nursing home and any such cases (for example, where a person may be deprived of liberty in their own home) should be referred to the Court of Protection for determination.
The CQC provides guidance for providers on both the MCA and, within this Act, DoLS. It is important that providers are familiar with this guidance and use it to judge whether they are meeting their duties and responsibilities under the Act. Links to both guides are given in the ‘Useful links’ section. The CQC also looks for evidence of compliance with the MCA and with the Safeguards in both its regular and thematic inspections.
The Bournewood judgement
The Safeguards were introduced to provide a legal framework around deprivation of liberty, to protect some very vulnerable people. Specifically, they were introduced to prevent breaches of the ECHR such as the one identified by the judgement of the European Court of Human Rights in the case of HL v. the United Kingdom (23) (commonly referred to as the ‘Bournewood’ judgement, from the name of the hospital involved). The case concerned an autistic man (HL) with a learning disability, who lacked the capacity to decide whether he should be admitted to hospital for specific treatment. He was admitted on an informal basis under the common law in his best interests, but the decision was challenged by HL’s carers, who asked to take HL home and were refused.
In its judgement in 2005 the Court held that this admission constituted a deprivation of HL’s liberty in that:
- the deprivation of liberty had not been in accordance with ‘a procedure prescribed by law’ and was, therefore, in breach of Article 5(1) of the Convention
- there had been a contravention of Article 5(4) of the Convention because HL had no means of applying quickly to a court to see if the deprivation was lawful.
Care and nursing homes are required to respect the human rights of their residents as set out in the HRA 1998 and in the case of HL the relevant right states: ‘Everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty save … in accordance with a procedure prescribed in law’ and ‘everyone … shall be entitled to take proceedings by which the lawfulness of his or her detention shall be decided speedily by a court and his or her release ordered if the detention is not lawful’. (24)
The majority of DoLS situations today occur in registered care and nursing homes. (25) (26) To prevent further similar breaches, the MCA 2005 was amended to provide safeguards for people who lack capacity specifically to consent to treatment or care in either a hospital or a care/nursing home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty. Later sections of this resource provide guidance on identifying when a deprivation of liberty may be occurring.
Winterbourne View and Mid Staffordshire Hospital
The circumstances of HL’s care are not isolated. Reports into care at Winterbourne View and Mid Staffordshire Hospital, and indeed other reports and inquiries, have highlighted issues relating to the care and treatment of vulnerable people where their basic human rights have not been recognised and people have been neglected and harmed as a result.
Similarly, the annual monitoring report by the CQC on the Safeguards (27) highlights the use of restraint and restrictions in care and nursing homes, without staff demonstrating a full understanding that these are restraints and restrictions and may well constitute a deprivation of liberty and require the Safeguards to be used.
For the avoidance of doubt, the Safeguards do not authorise care that would otherwise be recognised as abusive and an application should not be seen as an indication of this. Care homes should regard an application as showing that they understand their duty to uphold the rights of residents in care and nursing homes and that they are seeking an authorisation in the best interests of the person concerned.
The Safeguards are just part of the framework within which homes should be working to ensure they respect the human rights and dignity of residents. This framework is set down in law and includes:
- Human Rights Act 1998
- Mental Capacity Act 2005
- Disability Discrimination Acts 1995 and 2005
- Equalities Act 2010
Although this resource only covers deprivation of liberty it should be seen as part of a wider statutory framework aimed at improving the quality of the experience of residents in homes.
DoLS and the experience of people who use services
Applying the Safeguards should not be seen as a last resort for ‘very difficult residents’. The Safeguards should be part of a continuum of positive actions taken by care home managers and staff to address the quality of experience in a care or nursing home. Managers will review and promote access to activities provided in the home, access to the garden or the local shop, to public facilities and to family outings or visits. Where residents are not included and so have little or no access to liberty or to choose their activities, they may require the protection of the Safeguards.
The Safeguards are central to improving the experience of residents whose liberty is restricted to the extent it may become a deprivation. They are part of a succession of measures a home would normally take to protect and promote the rights of residents. They should, therefore, be part of an organisation’s quality improvement programme covering policy, audit, staff training, information for residents and relatives, relative involvement, reporting and benchmarking. How the Safeguards are managed and implemented should form part of the home’s governance programme.
DoLS and the MCA 2005
The Safeguards are part of the MCA and cannot be effectively applied unless care home staff and managers are familiar with the Act, have received appropriate training and had their practice audited. The five statutory principles set down in Part 1 paragraph 1 of the Act equally apply to a resident for whom the Safeguards might be relevant:
- a presumption of capacity: every adult has the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise in respect of each specific decision
- individuals must be supported whenever possible to make their own decisions: a person must be given all practicable help before anyone treats them as not being able to make their own decisions
- unwise decisions: just because an individual makes an unwise decision, they should not be treated as lacking capacity to make that decision
- best interests: an act done or decision made under the Act for or on behalf of a person who lacks capacity must be done in that person’s best interests
- less restrictive option: the person acting on behalf of a person who lacks capacity should consider all possible options that are less restrictive of that person’s basic rights and freedoms.
It may be useful for managers and staff to discuss how each of these principles can be applied, promoted and championed in their care and nursing homes. It is helpful to make a list of all the decisions that residents can make, as well as a list of the different ways that staff can support people to make as many decisions as possible. A system of recognising staff who make these principles a reality, even for the most confused or challenging residents, will help to ensure the quality of the service.
The less restrictive option is particularly important in relation to the Safeguards. For example, if a resident in a home is prone to restless walking, risks getting lost and coming to harm, and is also persistently trying to leave the building, staff should discuss whether an authorisation under DoLS might be required. Staff need to consider the steps they should take that both protect the resident from harm while at the same time ensuring their actions are the least restrictive option possible, ensuring the resident’s basic rights and freedoms.
Applying DoLS in practice
As part of a home’s quality improvement and governance arrangements there should be a framework in place that promotes the effective use of the Safeguards. (For the purposes of the legislation, a home considering an application for a deprivation of liberty authorisation is known as a ‘managing authority’).
This framework should include:
- Staff trainingon the Safeguards (as part of wider MCA training) so that staff know how to assess for deprivation of liberty when care goes beyond restriction/restraint and towards deprivation. This training should feature in induction, training and refresher programmes and records of completed training should be kept.
- An MCA and DoLS policy and procedure with particular reference to sections relating to training (some local authorities provide multi-agency DoLS training and homes should contact their local authority for more information), levels of responsibility, access to and completion of requests for standard authorisations (form 4), urgent authorisations (form 1) and situations in which they can be used.
- Aschedule of senior staff authorised to sign off applications.
- Guidance on care planning which should feature the Safeguards and explain how they support an effective care plan and are not a substitute for good care planning
- Arrangements for training on restriction and restraint and associated record-keeping, with particular reference to care that moves from restriction and restraint towards deprivation of liberty. Staff should be sensitive to the relationship between restriction and restraint and deprivation of liberty and aware that whenever restriction is being used or considered it could actually be a deprivation of liberty. If the restraint might go beyond that authorised by Part 1 paragraph 6 of the MCA, the manager should assess whether an application to the supervisory body should be made.
- A policy on how the home involves the resident (the relevant person) and their family and carers in DoLS decision-making.
- A programme of audit work covering application of the Safeguards to identify areas that can be improved such as training, senior staff rotas for authorising urgent applications and general awareness.
- The follow-up of comments in CQC reports relating to compliance with the MCA and DoLSso that action is ensured.
- Arrangements for automatically reviewing care plans in circumstances where a best interests assessor finds a relevant person subject to a deprivation of liberty regime which is not in that person’s best interests. It is important staff are aware of this.
- Priority given to the duty to report DoLS authorisation applications and outcomes to the CQC
- A policy to clarify and determine where responsibility lies for the preparation and review of care plans, and to ensure those leading this work are aware of the Safeguards and the role they play in care planning.
- A policy on working in partnership with the local authority supervisory bodies and supporting assessors on access to records and seeing the relevant person and their family/carers (taking account of the statutory right of assessors and IMCAs to see relevant records).
- Maintenance of a supply of application forms plus staff knowing where to locate them (forms can also be stored electronically, and obtained from any supervisory body).
- An awareness among staff responsible for care plans of the importance of meeting any conditions attached to an authorisation.
- A policy covering what action to take when an authorisation is coming to an end or needs to be reviewed.
- Patient and relative/carer information leaflets that include the Safeguards, local procedures and who to contact for more information.
Registered homes should be aware that the legislation expects them to scrutinise the care plan to ensure that it is the least restrictive option reasonably available and that any restriction or restraint is both necessary to prevent any likely harm and proportionate to that harm. Risks should be examined and discussed with family members. The risk of getting lost in the local area, the risk of spilling a cup of tea or the risk of getting out of a wheelchair need to be explored in terms of what can be done to lower the risk while weighing up the benefits of greater freedom and self-determination.
It is particularly important that homes have a clear policy and procedure in relation to which staff are authorised to make a DoLS application and that staff are trained and supported in this role. Depriving a person of their liberty is not a decision that should be taken lightly, even if it is in that person’s best interests. Homes should, therefore, have a procedure for agreeing who is authorised to sign applications. This is to ensure that there is an awareness at senior level when restraint is being implemented and is not intended to discourage an application for an authorisation. The list should be formally reviewed by care and nursing homes on a regular basis.
A person authorised to sign off applications should be involved each time an application is being prepared.
DoLS and the care plan
An authorisation to deprive a resident of their liberty is part of that resident’s care plan and not a substitute for it. The care plan should be put together in accordance with the framework set out in the MCA 2005 and follow what the Act and subsequent case law say about capacity and best interests assessments. The duty in the Act to consult with appropriate persons with an interest in the welfare of the resident involved equally applies to the Safeguards.
Care and nursing homes need to record and consider a person’s wishes and feelings in their care plans. Care plans should not simply be about what is done ‘to’ a resident, but also reflect the resident’s wishes and preferences.
Care plans should explain how a resident’s liberty is being promoted. Even small amounts of liberty and autonomy may mean a lot to residents in care and nursing homes, and different things will be important to different people. For example, a male resident may have a strong preference to be shaved by a male member of staff. Other residents may value highly the ability to receive a newspaper of their choice, or look forward to an occasional visit to a pub or simply the freedom to get up and go out.
Care plans should also show how residents are assisted to maintain contact and involvement with their family and friends.
Working with supervisory bodies
When a home wishes to seek a deprivation of liberty authorisation it will send the relevant paperwork to the appropriate supervisory body, which is the local authority where the person is normally resident, and which is paying for their care (or, if a person has funded their own care, the local authority where the care home is situated).
Homes will wish to work with their local authority to establish clear lines of communication and cooperation. Each local authority will have a DoLS office. Homes should:
- keep contact information for their local authority DoLS office
- have a procedure agreed with the local authority that allows assessors to have access to the resident in question, their family, carers and records
- understand that DoLS assessors have a statutory right to access relevant residents’ notes
- ensure staff know their organisation’s procedure for arranging a deprivation of liberty authorisation, including ways to ensure data protection
- have a supply of application forms 1 and 4 (or the local versions) available and ensure staff know where to locate them.
The case law relating to the Safeguards is evolving all the time and interpretation can be challenging. It is important that homes have access to reliable sources of information and guidance on case law developments so they can be applied to local practice where necessary. Homes will wish to ensure that any directly employed or contracted legal advisers are up to date on MCA judgements made by the courts and that processes exist for feeding the learning from these into practice.
The supervisory body may be able to provide case law updates and advice, and the Notes section provides links to sources. If a care home manager is unsure whether to make a referral for the Safeguards or not, it is generally better to err on the side of caution and make the referral.
It is essential homes are aware of the Supreme Court judgment handed down on 19 March 2014 and that the ruling is integrated into decision-making about residents. (70)
Restriction and restraint
Where a person lacks capacity to consent to care or treatment, Part 1 paragraph 6 of the MCA defines restraint as the use, or threat of use, of force to secure the doing of an act which the resident resists, or restricting a resident’s liberty of movement, whether or not they resist. Staff can exercise restriction and restraint if they reasonably believe it is in the person’s best interests, necessary to prevent the resident coming to harm and that it is aproportionateresponse to the likelihood of the resident suffering harm and the seriousness of that harm.
Restriction and restraint can be physical, chemical or verbal but it must always be a proportionateresponse to prevent the possibility of the resident coming to harm and must always be the least restrictive option available in the circumstances, to avoid the risk of criminal prosecution.
Homes will wish to ensure that:
- staff understand the legal framework around restriction and restraint
- staff are trained in the use of restriction and restraint techniques
- records are kept when restriction or restraint has been used
- restriction and restraint practice is audited regularly and where improvements are identified an action plan to implement them is developed
- guidance is given to staff on the relationship between restriction and restraint and deprivation of liberty.
If staff reasonably believe that the extent of restriction of movement and restraint required in the best interests of a resident may go further than what is permitted under Section 6 of the MCA, and might amount to a deprivation of liberty, then the home must have clear policies and procedures in place to ensure that an application for authorisation under the Safeguards is submitted to the appropriate supervisory body as soon as practicable. The next section covers this in more detail. A key responsibility of the person responsible for the care of each individual resident is to identify a possible deprivation of liberty and prepare the application for sign-off by the approved senior member of staff.
When to seek authorisation
Knowing when to seek authorisation for a potential deprivation of liberty may appear daunting. Although the Supreme Court’s ‘acid test’ brought a good deal of clarity, knowing the actual tipping point between restriction and restraint and deprivation of liberty in an individual case is not always easy. Courts have recognised that often this point can be a matter of opinion.
However, a home only needs to consider that a resident’s care might constitute a deprivation rather than trying to decide if it definitely does. A home is not required to understand the issue about the tipping point in great detail. If the proposed care may, in the home’s judgement, constitute a deprivation of liberty it should make application. In cases of doubt the home should seek advice from the appropriate supervisory body’s DoLS office.
Ultimately it is the supervisory body which decides if a deprivation of liberty is occurring and whether, if so, it meets the necessary criteria of being in the person’s best interests, the least restrictive option that can be identified, and proportionate to the risk of harm to the person and the seriousness of that harm. If all the criteria are met, the supervisory body (local authority) issues the necessary authorisation.
It is not the role of the DoLS office to prejudge or screen a potential application. It remains the responsibility of the managing authority to decide whether a deprivation of liberty may be occurring and to submit an application for an assessment.
There may be occasions when a home is required to grant itself an urgent authorisation (created generally using form 1, but consult your local DoLS team for local advice). For example, a resident who has been assessed as lacking capacity to choose where they live may be objecting very clearly to being placed at the home and may be trying to leave. The person may not respond to distraction, and it may have been assessed that the risk of the person leaving is too great to permit them to go. In this situation the care or nursing home should have policies and procedures in place to enable staff to identify when an urgent authorisation is needed. The responsible manager, or a designated deputy, may then grant the urgent authorisation, which will be valid for up to seven days, and should understand how to then complete the accompanying standard authorisation application.
It appears, anecdotally, that appropriate application of the Safeguards is sometimes resisted due to a mistaken belief that seeking and receiving an authorisation is in some way a stigma for the individual involved or for the home or the staff caring for them. There may also be a view that, because around half of applications are approved, the failure of an application is in some way a criticism of the home involved.
It should be remembered that the purpose of the process is to protect the rights of vulnerable people and to ensure they are not deprived of their liberty unnecessarily and without representation, review or right of appeal. The assessment process undertaken by the assessors and the local authority is itself a protection of the resident’s rights, irrespective of the outcome. Assessors examine the person’s needs and their situation in detail and in the light of the law. This assessment process is a protection, both for the staff, the home (which may be authorised to continue the care or advised to vary it through conditions or change some of it) and, most importantly, the resident and their family.
Whatever the outcome, a DoLS referral supports the rights of the relevant person and ensures that the care regime is in that person’s best interests. For this reason homes should err on the side of caution and submit applications if they believe deprivation of liberty might be occurring.
Account also needs to be taken of the advice in paragraph 2.16 of the DoLS code of practice. Each case should be judged on its own merits with the home’s assessment procedure considering the following questions:
- Why do I reasonably believe the person lacks the mental capacity to agree to the restrictions or restraint to which they are subject?
- Is the relevant person free to leave (whether they are trying to or not) the home?
- Is the relevant person subject to continuous control and supervision?
- Is the care regime the least restrictive option available?
- Is the care regime in the relevant person’s best interests?
If a person lacking capacity to consent to the arrangements for their care and treatment is subject both to continuous supervision and control AND not free to leave they are deprived of their liberty.
It may not be a deprivation of liberty, although the person is not free to leave, if the person is not supervised or monitored all the time and is able to make decisions about what to do and when, that are not subject to agreement by others.
Although there is no need to submit ‘blanket applications’ covering many or all residents, a home is more likely to face criticism and potential legal action for practising deprivation of liberty without the appropriate authorisation than it would be if it made applications for authorisation in circumstances that were subsequently found not to be deprivation.
What is deprivation of liberty?
It is good practice for care and nursing home providers to seek to reduce the need for urgent authorisations (see above) by planning ahead as part of good care planning practice, in the light of the likely profile of residents and the circumstances in which an authorisation might be sought. This allows for a full and proper assessment to be undertaken prior to an authorisation coming into effect.
This resource is not a review of the case law since 2009. It does, however, set out the steps to help make a decision about when an application should be made. The Code of practice (28) gives guidance in Sections 2.5 and 2.17 to 2.24. A care home should consider the Supreme Court’s ‘acid test’ when determining whether a deprivation of liberty is occurring; namely, is the person who lacks capacity to consent to being in hospital kept under continuous supervision and control, and are they free to leave? Other questions to consider include:
- Is the care regime more than mere restriction of movement?
- Is the person being confined in some way beyond a short period of time?
- Is the care regime the least restrictive option available?
- Is the care regime in the person’s best interests? (Even if it is, it may still be a deprivation of liberty requiring authorisation.)
- Is the person being prevented from going to live in their own home, or with whom they wish to live?
Care homes should note that a person’s compliance with, or lack of objection to, their care and support in hospital is not relevant to whether it amounts to a deprivation of liberty.
It should be emphasised that even if staff believe the care proposed for a resident to be in their best interests it could still amount to a deprivation of liberty requiring authorisation.
The courts have found that deprivation is a matter of type, duration, effect and manner of implementation rather than of nature or substance. 29 In simple terms, locking a person in their room, sedating them or placing them under close supervision for a very short period of time may not be a deprivation, but doing so for an extended period could be. However, what might appear to be mere restriction and restraint, such as a locked door, if repeated cumulatively, could also amount to a deprivation.
Section 2.5 of the DoLS code of practice also gives some examples of what could constitute deprivation of liberty, drawn from a range of court cases:
- restraint is used, including sedation, to admit a person to an institution where the person is resisting admission
- staff exercise complete and effective control over the care and movement of a person for a significant period
- staff exercise control over assessments, treatment, contacts and residence
- a decision has been taken that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate
- a request made by carers for a person to be discharged to their care is refused
- the person is unable to maintain social contacts because of restrictions placed on their access to other people
- the person loses autonomy because they are under continuous supervision and control (for example, often subject to one-to-one care).
Staff need to keep constantly in mind the question ‘Why do I reasonably believe this person lacks capacity?’, and to be checking the answer.
Homes need to take case law into account when determining whether the restriction and/or restraint being applied to a resident, who lacks the capacity to consent to their care and treatment in their best interests, is moving towards deprivation of liberty which requires authorisation. Deprivation of liberty could be occurring if one, some or all the above factors are present. Registered homes should develop close working relationships with the DoLS team at the supervisory body and in cases of doubt seek advice. There is no need to request authorisation routinely for all residents, even if they do lack capacity, to stay in the home.
The general advice, however, is to err on the side of caution and make an application if the home believes deprivation of liberty may be occurring.
It is not the role of the DoLS office to ‘pre-screen’ potential applications. If a home believes a resident’s care regime amounts to a deprivation of liberty it should submit an application to its supervisory body.
Working with residents
When an application is being made under the Safeguards, the home should inform the relevant person and the person likely to represent them, including close family or carers. The home has a duty to identify if someone lacks family or friends apart from paid carers, and to inform the supervisory body of this on the application form. The supervisory body will then appoint an IMCA to support the person being assessed under Section 39A of the MCA. The advocate will work to ensure the relevant person is involved in the process as much as possible, and will take an interest in whether the care is being provided in the least restrictive way that will meet the person’s needs. However, the advocate is not a legal representative.
The supervisory body will also appoint a person to represent the relevant person. Generally, this will be a relative or friend, but if the person has nobody interested in their welfare apart from paid carers, the supervisory body will appoint a paid relevant person’s representative.
Once an authorisation has been granted it falls to the home to support the person being deprived of their liberty and the relevant person’s representative on matters in relation to the authorisation. The following are examples of good practice adopted by many homes:
- Working with and supporting the resident and their representative to ensure they understand what an authorisation means in relation to care and treatment and leaving the institution, etc.
- Ensuring that the person and their representative are aware of their right to request a review of any part of the authorisation at any time.
- Having available for them information on local formal and informal complaints procedures.
- Supporting them in understanding their right of challenge to the Court of Protection under Section 21A of the MCA. Such a challenge would be legally aided (in the case of disputes over the authorisation, the expectation is that a public body will take the matter to the Court of Protection).
- Being proactive in relation to the relevant person’s legal entitlement to the support of an IMCA.
- Supporting the resident’s representative in ensuring they stay in touch with the resident.
As the period of the authorisation progresses the home should:
- monitor the person’s wellbeing carefully
- set out in the resident’s care plan roles and responsibilities in relation to the authorisation, plus details of any attached conditions and how these will be implemented and monitored
- keep a record of actions taken in relation to any conditions attached to the authorisation and any subsequent outcomes that may affect the care plan or the deprivation of liberty
- inform the supervisory body of any changes in the situation such as factors requiring the authorisation to be ended, a need to change the conditions or the resident’s presentation significantly changing in some way. In such circumstances the supervisory body should be asked to undertake a review
- keep copies of applications and authorisations with the resident’s records
- maintain appropriate records of the resident’s care and treatment during the period of the authorisation
- be aware the home can remove an authorisation if it is no longer appropriate but must inform the supervisory body
- cooperate with the supervisory body when arranging reviews.
Working with IMCAs
In certain circumstances a relevant person being assessed for an authorisation will be entitled to the support of an Independent Mental Capacity Advocate (IMCA), appointed by the supervisory body. (30) In some cases the IMCA will continue working with the resident through the period of the authorisation and subsequent reviews.
Care and nursing homes should ensure that IMCAs are able to see and speak to the resident concerned in private and can access their records.
There may be safeguarding situations 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. For example, a family member may be thought to be putting pressure on a resident to sign cheques or other financial documents when they no longer have the capacity to do so. Or a relative may be bringing in food which the resident is no longer able to eat safely, putting them at risk of choking. In other instances, a relative may be perceived as ‘interfering’, ‘questioning’ or ‘challenging’ by staff.
In such circumstances a manager or local authority staff member might think that the person should not have contact with their relative or friend. This is a serious matter, which requires consideration of less restrictive ways of addressing the problem. Preventing contact is always a last resort, and the MCA Code of practice, (31) now supported by case law, suggests that it is the Court of Protection which should always make decisions when contact between family members or close friends is being restricted, and it is impossible to solve the situation through mediation.
Homes should note that an authorisation under the Safeguards, other than as a very short-term measure, should not be relied upon to manage ‘no contact’ cases and instead a court decision should be sought.
There is a risk that the Safeguards could be used inadvertently to legitimate general safeguarding concerns and this should be avoided. Clearly such circumstances should be managed in close co-operation with both the local authority’s adult safeguarding service and its DoLS office.
Preventing contact with family members and friends may be a breach of a person’s human rights, and as such it should feature in the home’s safeguarding policy and procedure.
Human rights-based practice
These are some suggested indicators of success that homes may wish to adopt.
- The home has anamed person with responsibility for ensuring MCA compliant practice. This person should be a resource for information and the commissioning of training, and check that policies and procedures relating to people who might lack capacity for some decisions (such as those concerning consent, how to assess capacity and how to make a best interests decision) are clear and are followed.
- This person has an ongoing working relationship with the supervisory body in the home’s area: their staff can provide useful information and support to a home to help it meet its responsibilities as a managing authority under the Safeguards.
- The home’s MCA lead should ensure the home has aclear policy about who should sign urgent authorisationsand who should request standard authorisations.
- The MCA lead is also responsible for monitoring and auditing training and practice, and bringing concerns about DoLS or wider MCA compliance to senior management in a timely way.
- The home has clear policies, applying both to admission and during a person’s stay, about action to take when a person appears unable to consent to treatment and care, or to being in the home.
- Staff know how and when to assess and record a person’s capacity in accordance with the MCA. There is evidence that they do their best always to maximise the person’s capacity to make their own decisions.
- Governance mechanisms are in place to ensure compliance with the MCA:identified senior managers receive regular information about all incidents of restraint of residents lacking capacity to consent to what is proposed, including the staff response, mechanisms for learning from the incident and assurance that staff action was the least restrictive (of the person’s rights) that could be identified. Staff need guidance on circumstances when restriction and restraint moves towards deprivation of liberty.
- Restriction and restraint are not ‘blanket policies’ but are identified for an individual person and are frequently revisited in an attempt to reduce or remove restraint and to ensure care is provided using the least restrictive option principle.
- Staff recognise and understand when, how and to whom to raise concerns that a person may be deprived of their liberty.
- Data on requests for a standard authorisation under the Safeguards are studied and gaps in appropriate use identified.
- Data on use of urgent authorisations are examined to identify possible less restrictive options: if a request for a standard authorisation, accompanied by an urgent authorisation, is refused, staff learning from that experience is facilitated.
- Care planning for people who might lack capacity is MCA compliant: staff understand and are competent in how and when to make best interests decisions, and comply with the requirement to consult with family or friends interested in the person’s welfare.
- If an IMCA is appointed to support a person subject to a DoLS authorisation assessment, the home works with and supports that person.
- Steps are taken to gather information from family members and, wherever possible, from residents themselves regarding their experiences of the MCA and DOLS processeven though they may lack, or have lacked, capacity.
Mr Q (90): DoLS example from practice
When his wife died, Mr Q (90) came into a care home from the smallholding where they had lived for many years. He was incommunicative, and staff thought him very suspicious of them, and somewhat confused. They found Mr Q very resistive to bathing and showering; in their words, ‘It was a battle to get him to keep clean or change his clothes.’ He also worried them by wanting to go out alone. Although he was quite mobile, there were concerns that he might get lost, and the home had twice notified the police, who had found Mr Q several miles away, but saying he knew his way back to the home. Mr Q’s daughter-in-law supported the staff’s actions in restraining him, saying he’d always been ‘difficult’. The care home became worried that the battles were getting worse, and applied for a standard authorisation.
The best interests assessor identified that Mr Q had capacity to refuse their interventions: Mr Q explained that he wasn’t used to bathrooms, and preferred to wash at the sink. He also thought they were being nosy asking him where he was going, and wanting him to change his clothes so often – he resented the implied criticism. He thought he was unlikely to fall, but he would take that risk: he couldn’t bear being indoors or with other people all day.
Mr Q was then invited to help staff draft his care plan, which, with his input, consisted of minimal intervention, more stews at dinner time and acceptance from the staff that he was free to wash how he wanted, wear what he wanted, and go for long walks.
Local authorities: commissioning for compliance
Local authorities are required to comply with the MCA and the European Convention on Human Rights. When commissioning services for vulnerable people, each local authority will wish to assure itself that the service provider is respecting residents’ rights and, in respect of the MCA and DoLS, applying good practice. The indicators below will go some way to providing this assurance and are part of the commissioning team’s tool kit aimed at ensuring residential care is of the highest quality.
As part of the commissioning process, local authority commissioning teams should expect to see evidence of the following from homes providing care to adults who lack capacity to consent to the arrangements for their care and treatment while in the home:
- That the organisation has a named MCA lead.
- That policies and procedures place the MCA at the heart of decision-making.
- That there are written MCA-compliant capacity assessments and best interests decision-making is taking place.
- That care plans document people’s wishes and feelings and identify what homes are doing to promote residents’ liberty.
- That care plans show how homes promote access to family and friends.
- That staff have knowledge of the Safeguards and know how to identify restriction that may go beyond that which is authorised under Part 1 paragraphs 5 and 6 of the MCA and which, therefore, could lead to criminal prosecution unless specifically authorised (via DoLS or the Court of Protection).
- That there is a written schedule of senior staff authorised to sign urgent authorisations and applications for standard authorisations.
- That arrangements are in place for training on restriction and restraint and associated record-keeping with particular reference to care that moves towards deprivation of liberty.
- That the home involves the relevant person, their family and carers in the decision-making processes
- That audit records give details of use of the Safeguards, with explanation of figures that appear particularly high or low. Homes can use the NHS Digital annual report and data from their supervisory body to set benchmarks.
- That the home has in place arrangements for automatically reviewing care plans in circumstances where a best interests assessor finds a relevant person subject to a deprivation of liberty regime which is found not to be in that person’s best interests.
- That the home keeps records of compliance with its statutory duty to report DoLS authorisation applications and their outcomes to the CQC.
- That any restriction on contact with family members is discussed with the local authority DoLS team to seek advice about whether the situation needs referring to the Court of Protection.
- That the Supreme Court judgment has been integrated into practice.
The commissioning team will also need to have access to copies of local policies and procedures covering training (including refresher training), along records of the number of requests for standard authorisations (form 4), urgent authorisations (form 1) and the circumstances which lead to applications being made.
In addition, the team will work with their local authority’s DoLS office, which will have information on the numbers and outcomes of applications for assessments being submitted by homes. This could alert commissioners to potential concerns if, for example, a home whose residents have learning disabilities or dementia has a low number of applications compared to similar homes.
The appropriate supervisory body will be governed by the Department of Health’s (DH) ordinary residence guidance.
29 – See e.g., Engel & Ors v the Netherlands (no 1) (1979–80) 1 E.H.R.R 47 and Guzzardi v Italy (1981) 3 E.H.R.R 333
30 – Department of Health (DH) ‘The fifth year of the independent mental capacity advocacy (IMCA) service’ (2013), London.