The DoLS code of practice (32) is invaluable for understanding the roles and responsibilities created by these Safeguards.
The role of the local authority to act as a supervisory body for DoLS imposes upon it a more general duty to act as a human rights champion for those adults who might lack capacity to agree to actions taken by others.
The role of human rights champion entails the active promotion of the human rights of citizens – for example, in avoiding breaches of their human rights wherever possible, and facilitating their ability to contest actions of the local authority in court.
When a local authority is carrying out its supervisory functions, it is essential that its processes and practices promote human rights, are open, transparent and helpful to the person at the centre of DoLS, the ‘relevant person’ (or person for whom detention is sought), and their relatives or friends. The ‘positive obligation of the state’ means that all its interventions must be accompanied by scrutiny within this essential framework.
Process should be lawful, consistent and accurate:
- people subject to a request for authorisation to deprive them of their liberty must be informed about the request, and have its implications explained
- they must also be clearly advised how to challenge the authorisation.
What makes a good supervisory body
Oversight and management of the supervisory body functions relating to the Safeguards should be assessed against the standards laid down in the funding fact sheet produced by the DH in 2012. (33) Due to their importance, indicators of quality that make for a good supervisory body are here quoted from that Factsheet:
- There is clarity about who holds corporate responsibility for MCA/DoLS functions.
- Those holding corporate responsibility are supported to have a good understanding of the Safeguards, including relevant case law.
- There is clarity that the supervisory body needs to be independent of service delivery.
- Unauthorised deprivations of liberty are managed according to an agreed and time-sensitive protocol.
- There is a good understanding of and compliance with regulations.
- Assessors are trained, supervised and commissioned in accordance with regulatory requirements.
- Information is available on how many times a managing authority has been asked to extend an urgent authorisation and the reasons for this.
- Local authority contracts with relevant care homes specify compliance with the DoLS regulations.
Awareness and use of case law
- There is evidence that case law decisions are incorporated into assessments, authorisations and training.
Monitoring and evaluating the DoLS process
- There is an agreed system, including frequency, for monitoring and evaluating implementation of the DoLS process.
- There is an independent element to monitoring and evaluation, for example involvement of peer authorities or IMCAs.
- The results of the process are shared with identified senior management and concerns addressed.
- Regulatory compliance is monitored and the reasons for any defaults are explored.
- Information is collected on frequency, timeliness and outcomes of reviews.
- Unauthorised deprivations of liberty are shared with management, commissioning and safeguarding teams.
Empowerment of the individual within the DoLS process
- There is evidence that the relevant person has been empowered and assisted to share their views.
- There is evidence that the person’s wishes and feelings have been listened to and actively considered as key components of each assessment and review.
- Capacity and best interests assessments record attempts made to maximise residual capacity and give the person as much involvement in arrangements for their care and treatment as possible.
- The DoLS service is certain that the relevant person (if able) and their representative understand that they can request reviews of any of the assessments at any time.
- The DoLS service makes it easy for the person, their representative, the managing authority or a third party to ask for a review – for example, by accepting telephone requests in the first instance.
- The DoLS service proactively offers reviews whenever the person or their representatives, assessors, the managing authority or an IMCA acting under the relevant sections of the MCA (39A, 39C or 39D) expresses disquiet.
- The DoLS service has a policy of sending different assessors from those who initially assessed the situation to undertake reviews.
- Information is available on how many reviews are requested, how many carried out, and how many result in changes such as lifting an authorisation.
- Outcomes from reviews are monitored and where necessary the DoLS service liaises with other services such as commissioning or safeguarding.
- There is evidence of good relationships/partnerships with the relevant person, their representative and IMCAs carrying out roles under Section 39 of the MCA.
- The DoLS office provides relevant information and support to the relevant person’s representatives and IMCAs to make it easier for them effectively to carry out their roles.
- The supervisory body checks with the managing authority that the role of the relevant person’s representative is being fulfilled to the required standard.
- Support is offered to the relevant person’s representatives who may have difficulty fulfilling some of the requirements of the role.
- The supervisory body scrutinises the appointment of the relevant person’s representative to ensure that the person has been given the opportunity to choose their own representative if possible, and that, failing that, and in the absence of lasting power of attorney, the selection is transparent and justified.
- MCA Section 39D IMCAs are commissioned for each authorisation granted, to support the person and their representative to understand the terms and any conditions of the authorisation and to challenge the authorisation if they wish.
Feedback and learning for local authorities and CCGs
It is important that learning from the DoLS process and outcomes is fed back into mainstream care via the commissioning and contracting process as a way of continuously improving the care of vulnerable people and protecting their rights.
Specific pointers to good practice include:
- learning gained from the assessment and processes of DoLS about avoidance of deprivation of liberty is identified
- supervisory body authorisers share this learning as appropriate with care management and commissioning services
- data on DoLS activity is shared and used within organisations.
Feedback and learning for managing authorities
- Learning should be fed back in order to improve the care offered in managing authorities (both care homes and hospitals).
- Learning gained from managing the Safeguards becomes part of MCA training provided for managing authorities or shared with their learning and development managers.
- There are clear mechanisms to facilitate learning in managing authorities, such as notifications of training events, or a newsletter with examples of good practice.
Joint local strategic leadership
- Local authorities, CCGs, hospital clinical governance teams and the CQC have explicit joint aims regarding implementation of the MCA including DoLS.
- This leadership provides clear shared messages on the importance of using a human rights framework within both health and social care.
- There are multi-agency forums to facilitate relationships and the ongoing implementation of the MCA including the Safeguards.
Compliance with the legal and regulatory framework
The DoLS are sometimes criticised for being too bureaucratic. However, those working within this area often find that the forms, and their instructions, provide invaluable reminders of the MCA Schedule A1 and the Regulations. (34) The forms and their framework of guidance prompt staff to ensure the independence and appropriate skill and training of assessors, tell administrators what information they need to share with whom, and lay out essential questions for consideration by assessors.
Some authorities have edited and altered the forms for ease of use (for example, by combining forms 1 and 4, so that a managing authority does not have to repeat information on two forms required to be completed at the same time). It remains advisable that the administrative framework provided by the forms should be the basis for good practice as it ensures compliance with the legislation and also facilitates the maintenance of appropriate record-keeping.
With the move by the Health and Social Care Information Centre (now NHS Digital) towards individual data-collection, (35) it is advisable for supervisory bodies to ensure that, where necessary, an individual can be tracked through a series of authorisations.
Amid reorganisation of government forms and guidance, it is good practice for supervisory bodies to ensure that they have copies of the most up-to-date forms easily available – for example, on the local authority website and/or sent proactively by email to hospitals and care homes thought likely, on the basis of their populations, to need them.
For the regulatory framework, including selection and training of assessors, see the ‘Deprivation of liberty safeguards: regulations and assessor training’. (36)
Timescales: good practice
An urgent authorisation is generally in force for up to seven calendar days. Although it is challengeable, it should be in force for as short a period as possible, since it is an authorisation to deprive a citizen of their liberty without a proper assessment process. There are occasions when a supervisory body may ask the managing authority to extend the period, as it is permitted to do, for a maximum of a further seven calendar days. However, this must be for some exceptional reason, and expressly not simply for the convenience of the supervisory body. Section 6.24 of the DoLS code of practice (37) states:
It is for the supervisory body to decide what constitutes an ‘exceptional reason’, but because of the seriousness of the issues involved, the supervisory body’s decision must be soundly based and defensible. It would not, for example, be appropriate to use staffing shortages as a reason to extend an urgent authorisation.
Mr T (74): DoLS example from practice
Mr T, a widower of 74, lives in a care home. He has dementia. His only relative in this country is his daughter Jane.
Following a stroke, Mr T’s confusion increased, and he began leaving the home, even climbing out of windows, because he thought his mother was calling him. The care home believed it was depriving him of his liberty by repeatedly preventing him from leaving, so gave itself an urgent authorisation and requested a standard one.
The best interests assessor discovered that Jane T was a police officer currently on night duty. She had never heard of the Safeguards, and greatly wanted to be part of the assessment process for her father. The urgent authorisation was extended for two days until her shift pattern changed and it was possible for her to be at the care home when the best interests assessor visited.
Since the huge increase in deprivation of liberty applications following the March 2014 Supreme Court ruling, timescales for standard authorisations have been routinely missed, sometimes by considerable margins, as supervisory bodies have been inundated with application requests. In 2015–16, only 29 per cent of applications were completed within the standard of 21 days, compared to an average of 98 per cent in the year leading up to the Supreme Court ruling.5
It is important for local authorities to audit the performance of their supervisory body functions to ensure that statutory timescales are clearly recorded and met, and that assessments are of a quality to enable authorisers to understand how the assessors reached their conclusions.
Applications from hospital managing authorities, which were formerly disposed of by primary care trusts, should be explored by the local authority supervisory bodies to ensure understanding of their culture relating to restraint, and to investigate differences in application rates among hospitals. This is a possible use of some of the additional funding given to local authorities to carry out the functions formerly undertaken by primary care trusts.
All assessors under the Safeguards must undergo mandatory annual refresher training. Some authorities have developed further systems to support assessors, often based on those required for approved mental health professionals (AMHPs) working within the MHA 1983. The CQC pilot study showed that some supervisory bodies have gone further than others in training assessors for their roles:
Three [supervisory bodies] have a regular reapplication process. Three require attendance at one-to-one meetings (supervision); one undertakes annual appraisals of the assessor’s best interests assessor or mental health assessor practice; three require attendance at regional meetings. One requires that assessors must have completed at least one assessment each year to remain current. One requires an annual DBS check (formerly known as Criminal Records Bureau check). There is a wide variation in requirements in relation to assessor CPD. About half of the supervisory bodies showed a relatively structured approach to requiring and checking on assessor CPD; three made very few demands and checks. CQC plans to explore this further.
Recruitment and retention
The CQC study also explored practice in relation to recruitment and retention of assessors. An interesting ‘negative finding’ was that the methodology was less successful in gathering information about mental health assessors, who are in general either employed by local mental health trusts or independent practitioners, than about best interests assessors, who are more often employed directly by local authorities. It is possible that this reflects a degree of disengagement from mental health assessors on the part of local authority supervisory bodies. Following the transfer of supervisory body responsibility from primary care trusts to local authorities there has been a risk that supervisory bodies may not always have access to sufficient mental health assessors with relevant specific areas of expertise (such as dementia or learning disability).
The study showed that most supervisory bodies directly employ most of their best interests assessors, while resorting to self-employed contractors when, for example, facing challenging timescales or a rush of concurrent applications. From this sample, just one used self-employed best interests assessors exclusively.
Support for managing authorities
- It is not appropriate for a supervisory body to influence, or seek to influence, the managing authority with regard to making a request for authorisation. The supervisory body, however, can and should encourage managing authorities to consider making a request for authorisation if advised to do so by others, in particular, people who use services/residents or their relatives.
- Supervisory bodies act correctly when they request a managing authority to consider in a timely fashion whether to ask for further authorisation relating to a person who is already on an authorisation. In such a situation, the managing authority must either request a further authorisation period, or, if the current authorisation is no longer necessary, request the supervisory body to carry out a review of whichever qualifying requirement is no longer met.
- A managing authority should not allow an unnecessary authorisation to run on, sometimes for a considerable period, until it reaches its end-date. Supervisory bodies should encourage managing authorities to examine closely the need for existing authorisations. Since they should be doing everything possible to lessen the need for an authorisation, managers might reasonably expect that these attempts would create a situation where the person no longer needs to be restrained in the way that was authorised. If this happens, they must stop restraining the person (since it is no longer necessary in the person’s best interests), and request a review from the supervisory body.
- When giving information on the process, and on what case law and the DoLS code of practice2 suggest as possible pointers towards a deprivation of liberty, a supervisory body must take care to avoid bypassing the lawful assessment process by pronouncing an opinion on a situation presented by a managing authority.
- A managing authority must be advised that, if they are in any doubt about whether or not current or planned restrictions might amount to a deprivation of liberty, they should request authorisation so that the assessors can examine all the features of the person’s care.
- It is good practice to give assistance to managing authorities to ensure they understand how to complete urgent authorisations and requests for standard authorisations, and the requirements that they must:
- inform the relevant person (orally and in writing) of their rights to challenge the authorisation or to request a review
- inform them and their representative of their right to have the help of an IMCA (under MCA section 39D) and how to have one appointed
- give information to the representative as soon as is practicable after giving it to the relevant person.
It is also good practice to ensure that the managing authority understands its responsibility to notify the CQC of the authorisation request and outcome, and that they know how to do this.
DoLS example from practice
One supervisory body provides detailed individual feedback to managing authorities on all requests made. It also sends a regular newsletter to all managing authorities.
Examples of proactive practice
- Rather than wait for the managing authority to request a further authorisation, many supervisory bodies notify them formally a month before the expiry of a current authorisation (or in good time if the authorisation is shorter than this), and discuss with them whether they think another authorisation is needed or whether the circumstances of the person have changed, so that they are no longer being deprived of their liberty (in which case they must be advised to request a review).
- Some supervisory bodies provide ongoing briefing sessions for local managing authority staff (hospitals as well as care homes).
- Some supervisory bodies target ‘likely candidates’ (such as homes specialising in dementia or where residents have learning disabilities and challenging behaviour) where the Safeguards are not being invoked and visit them to explain how and when they should consider their use.
The CQC pilot found that 10 out of the 13 supervisory bodies interviewed offered some kind of planned, continuous support to managing authorities in relation to the MCA in general and the Safeguards in particular:
Of these, seven offered telephone support throughout the working day. Two offered an e-learning course, two others gave individual feedback to applicants after each request for authorisation; four analysed applications and gave specific remedial training to applicants where needed … One supervisory body stood out as working in a number of ways to help the managing authority understand their role and meet requirements relating to it, including making sure they understood any conditions.
When an authorisation comes into effect
A standard authorisation comes into force when it is given, though it may be given in advance (within a month) of being required (see MCA Schedule A1 (38) 50–53.) An authorisation is ‘given’ when it is signed by the authoriser and communicated to the managing authority, since only then does it come into existence. Case law has clarified that an authoriser’s role is:
- to scrutinise with rigour the grounds for the authorisation
- to add or remove conditions and shorten the authorisation period as required
- to request if necessary further information from the assessors to support their decision-making.
See also the ‘Checklist for authorisers’ in this resource.
Supervisory bodies should not tell managing authorities that an authorisation has been given before it has been signed, on the basis that the supervisory body office has had sight of the required written assessments and supports the authorisation.
Purpose of an authorisation
An authorisation can only be given with regard to somebody who lacks capacity to decide ‘whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment’ (MCA Schedule A1, (39) paragraph 15) and the person does not have an advance decision to refuse treatment (ADRT) and is not subject to a lasting power of attorney that would conflict with the proposed treatment. (MCA code of practice (40) 4.26).
An authorisation cannot be used by a local authority or NHS trust to ‘get its own way’, nor to prevent the relevant person having contact with relatives or friends This is a clear breach of Article 8 of the Human Rights Act 1998, and cannot be authorised through the DoLS process. Such a situation, which has the potential to lead to a major dispute between family members and the local authority, must be the subject of urgent local mediation and, if this fails to achieve consensus, the local authority should speedily seek resolution from the Court of Protection.
Support for people who use services and their representative
It is essential that the relevant person, and their relatives or friends, are consulted and are at the heart of the process of assessment. Any concerns expressed by them about the care plan and the prospective authorisation should be taken with the utmost seriousness. Otherwise, it is impossible to assess how proportionate any restrictions are. If a best interests assessor is selecting a relevant person’s representative, it is essential to remember that the purpose of the Safeguards is to ensure that the person, or someone acting on their behalf, can challenge the authorisation as laid down in the European Convention on Human Rights (41) Article 5(4). It is a serious distortion of the role of a representative if someone is omitted from selection because it is known that they disapprove of the authorisation or it is thought likely they will challenge it. Indeed, some supervisory bodies proactively select from possible candidates the representative who disapproves of the authorisation as they are more likely to maintain a strong interest in the relevant person’s human rights and the process itself.
As well as being crucial to the process, the relevant person and their representative must be sent information and copies of assessments, together with the outcome of all assessments and reviews.
DoLS example from practice
Some supervisory bodies send out ‘easy-read’ explanations of the Safeguards to all people for whom authorisation is sought. If authorisation is granted, they send information to the representative, and also routinely make contact by telephone as well as providing the name of the manager of the Safeguards and their direct telephone line. They routinely refer all standard authorisations to the IMCA service under Section 39D of the MCA.
It is good practice to give the relevant person and their representative the contact details of a named person, such as the manager of the DoLS service, who can if necessary help them understand any aspects of the process they find bewildering. In selecting the relevant person’s representative, the best interests assessor must remember that, if the person can choose for themselves, every effort must be made to enable them to do so (even if their choice is expressed simply).
Mr R: DoLS example from practice
Mr R has dementia. When the best interests assessor explained about the authorisation, and his right to choose someone to be his representative, he said:
If you want someone to be on my side, you ask our Mabel; she’s always been a good friend to me and won’t let them mess me about.
The supervisory body is in a good position, via the authoriser, to note issues of care management that should be shared with adult social care professionals or the contracts and commissioning team.
The use of IMCAs within the Safeguards
The Independent Mental Capacity Advocacy service is a crucial support for those at the heart of the process: the people deprived of their liberty in their best interests and their families. IMCAs are provided by and accessible through the supervisory body. The IMCA role is an important safeguard to ensure that both the relevant person and their representative understand their rights when an authorisation is in place. The fifth annual IMCA report (42) shows the range of usage among local authorities of Section 39D IMCAs. The report quotes the ADASS/SCIE good practice guide covering this area, (43) which recommends:
Supervisory bodies to instruct s39D IMCAs at the start of all standard authorisations where a person has a family member or friend appointed as their representative. This gives the person and their representative the opportunity to meet a s39D IMCA and so that they are in a better position to decide if they need the support of one at that point, or sometime in the future.
The Department of Health IMCA report (44) also shows an increase of 18 per cent from the previous year (2010/11) in the number of IMCA instructions associated with the use of DoLS. In total there were nearly 2,000 DoLS referrals to IMCA services in 2011/12.
The local authority has the responsibility to commission an effective and sufficient IMCA service within its boundaries as well as ensuring that sufficient assessors are available to carry out their required supervisory functions in a lawful and timely way.
A local audit of provision will highlight problems, including, for example, lack of sufficient IMCAs to work when required (see Appendix 1). Local authorities should ensure that management structures, in particular commissioning teams, are capable of responding to evidence of service delivery problems that may affect the local authority’s ability to meet its supervisory functions.
Relationships with safeguarding teams
Following problems identified in case law, the CQC’s pilot study of supervisory bodies (45) explored the relationships between supervisory bodies and adult safeguarding teams. It was found that 10 DoLS services were co-located with adult safeguarding teams, and shared staff over both functions. The remaining three had separate teams but shared a manager. The report comments:
On the face of it, the case for a link between the management of safeguarding and the Safeguards is attractive, but there are some risks. For smaller authorities in particular, the question is raised about how to maintain the conceptual distance between their safeguarding and their MCA (including the Safeguards) functions.
The approach taken by safeguarding teams tends to focus on protection from abuse, whether a person has capacity or not, whereas the Safeguards are a measure specifically located within human rights law to protect the human rights of people lacking capacity. While human rights should be and often is an important dimension to safeguarding and protection, some court cases have shown that professionals can focus on protection to the detriment of autonomy and rights, and fail sometimes to work within the best interests framework of the MCA.
In the same study, when asked generally about barriers to good practice, at least one respondent commented on ‘lack of understanding among colleagues of the human rights agenda as opposed to adult safeguarding’. Some local authorities have deliberately kept their DoLS teams separate and independent from safeguarding, while others ensure separation of decision-making rather than of location.
Lord Justice Munby has warned local authorities about the dangers of intervention against people’s wishes and against their human rights. In a recent speech he expanded on this:
The local authority is a servant and not a master – a truth which on occasions is too easily overlooked. Vulnerable adults look to the state – to the local authority – for the support, the assistance and provision of services, to which the law entitles them. They do not seek to be controlled by the state or by the local authority. And it is not for the state, in the guise of the local authority, to seek to exercise such control. (46)
As a result, one of the important roles of effective DoLS teams is to act as local authority scrutineers of safeguarding interventions when the interventions are against the wishes of people, or where they involve the control of compliant people who lack the capacity to agree to the intervention.
DoLS example from practice
One local authority has introduced automatic referrals from safeguarding to the DoLS team when a person who lacks capacity is removed to a place of safety, and/or when there is significant interference with family relationships. The DoLS team decides whether and when an urgent application to the Court of Protection is necessary.
Core duties of the supervisory body
The core duties and responsibilities of the supervisory body are to:
- Respond to requests for standard authorisation.
- Respond to requests for an extension of an urgent authorisation.
- Commission the relevant IMCA service when required to do so.
- Commission the six assessments required for a standard authorisation.
- Grant the standard authorisation of deprivation of liberty if all assessments are positive, or not grant if one or more assessment is not met.
- Appoint the relevant person’s representative.
- Respond to requests to review a standard authorisation and carry out a review when appropriate.
- Suspend and, where appropriate, terminate a standard authorisation if the person is detained under the MHA 1983 for up to 28 days (Schedule A1 of the MCA 2005 (47) para. 93(2) does not specify who holds the responsibility to suspend the standard authorisation). The standard forms 14 and 15 issued for the suspension of standard authorisation and the lifting of the suspension are listed as forms for the managing authority to complete. This guidance follows paragraph 8.30 of the DoLS code of practice (48)
- Terminate the deprivation of liberty standard authorisation when appropriate.
- Terminate the appointment of a relevant person’s representative when appropriate.
- Respond to requests to investigate alleged unauthorised deprivations of liberty.
An equivalent assessment is explained in the DoLS code of practice49chapter 4 (following MCA Schedule A1 (50) paragraph (49)) as an assessment carried out within the previous 12 months, not necessarily for the purpose of a deprivation of liberty authorisation, that meets all the requirements of a DoLS assessment, is still accurate, and of which the supervisory body has a written copy. (A common-sense exception to the 12-month time-limit is the age assessment, which has no time limit.). The code gives as an example a recent assessment carried out for the purposes of the Mental Health Act 1983, which could serve as an equivalent to a mental health assessment for DoLS purposes.
The CQC pilot study8 found a range of practice relating to the use of equivalent assessments:
- Eight (of the 13 respondents) would consider accepting an assessment that was up to a year old on a case-by-case basis, but one of these eight normally only uses assessments if they are less than six months old, and one only accepts assessments if they are less than three months old.
- Four said that they would always commission fresh assessments if there had been a change of circumstances since the last assessment; three said they commissioned fresh assessments for each application.
With the exception of the age assessment, some supervisory bodies have formulated policies governing the use of equivalent assessments, in particular time limits on reusing assessments. These policies differ widely, from only using assessments carried out within the previous month, to reusing assessments carried out over 11 months previously. Although the Schedule allows for reuse of assessments carried out within the previous 12 months, it is generally agreed that the longer the period of time since the assessment was made, the more wary a supervisory body should be of reusing it rather than commissioning a fresh assessment. In particular, many supervisory bodies would only reuse a capacity assessment under very exceptional circumstances, referring to the requirement in MCA Section 2 that assessment of capacity must be decision- and time-specific. European case law suggests that, when using previous mental health assessments, supervisory bodies should be careful to ensure they provide evidence that the person’s mental disorder still persists.
A supervisory body should take care to avoid any suggestion of ‘rubber-stamping’ repeat authorisations without revisiting the circumstances of the person. For example, a fresh, formal look at the mental health assessment might, while agreeing with the previous diagnosis of mental disorder, find differently in answer to a question about the effect of deprivation of liberty on the person’s mental health.
Every time a repeat authorisation is requested, and the supervisory body is considering using equivalent assessments, it must consider whether the reuse of any of these might pose a risk to the relevant person’s right to expect that any decision to deprive someone of their liberty is made following defined processes and taking all the current relevant factors into account.
Supervisory bodies should record the reasons why they have used any equivalent assessment: standard form 11 is recommended for this purpose.
Most of the support available to supervisory bodies when the Safeguards were first implemented (such as regional leads and a dedicated DH team) no longer exist. However, many of the original regional groups have continued informally, and provide an invaluable source of advice and best practice in this area.
Several law firms and chambers of barristers put out free, regular updates on case law in this developing area, and there are national and regional conferences and masterclasses; it is essential for supervisory body management staff, managing authorities and best interests assessors to be aware of these.
When the CQC explored this area (51) it found that, while seven of the 13 supervisory bodies were active participants in their regional MCA/DoLS network, one reported only informal contact with neighbouring authorities, and two reported no peer support contacts at all. It is recommended good practice for local authorities to support the DoLS manager to be actively involved with the regional group, as well as seeking out other mechanisms for their continued learning.
Emerging practice for supervisory bodies
A supervisory body can only authorise a deprivation of liberty if it takes place in a care home or hospital. If it takes place elsewhere, it can only be authorised by the Court of Protection. Authority can never be given under a Lasting Power of Attorney to make a deprivation of liberty lawful.
There is a potential role for supervisory bodies in assessing whether a care plan or the care provided in the community to a person lacking capacity to consent might be approaching a deprivation of liberty. Their role is to examine the care plan and the care provided and to seek an assessment by a best interests assessor about whether a) there might be a deprivation of liberty; b) the care could be provided in a less restrictive way that removes the danger of the situation being a deprivation of liberty; and c) an application to the Court of Protection may be necessary.
Local authority reviewing officers: DoLS example from practice
One local authority has its reviewing officers working very closely with the DoLS team. The reviewing officers refer clients who receive their care in their own homes or in other community settings to the DoLS office if they have concerns about restrictions. The DoLS office then sends out a best interests assessor to establish whether there may be a deprivation, whether it is in the person’s best interests (or whether it could be made less restrictive) and whether an application to the Court of Protection is needed.
Another local authority has introduced procedures to ensure that particular care is taken in planning clear pathways for people with a learning disability at the point of transition to adult services. The restrictions which may be appropriate for a child may no longer be appropriate for a young adult and may amount to a deprivation of liberty unless challenged. Where such restrictions may be thought necessary in the person’s best interests, and the person will be in a care home or hospital setting when they reach the age of 18, they require assessment and authorisation under the Safeguards. If the person is likely to be in supported living accommodation, or living in their own or the family home, deprivation of liberty can only be authorised through an application to the Court of Protection.
Wider local authority strategy based on learning from DoLS
DoLS teams, in particular best interests assessors and authorisers of DoLS, are becoming the key experts in care planning in a human rights framework. They are developing knowledge, skills and understanding which are relevant and important for the majority of social care people who use services. Local authorities could build on this expertise in developing their wider human rights strategy and practice.
Mr J (23): DoLS example from practice
Mr J (23) has learning disabilities and Asperger’s syndrome, with behavioural difficulties including aggression when frustrated or anxious.
He was admitted in an emergency to a local residential care home, after a violent incident at home connected both to his problems and to his mother’s mental health issues and substance abuse. The local unit was unable to manage his behaviour, so he was placed in a specialist home 50 miles away.
He lacked capacity at this time to consent to arrangements made by the home for his care. The staff in the unit brought him back in his pyjamas from several attempts to go home at bedtime, when he was missing his mum, and additionally refused to allow his mother to visit.
The unit gave itself an urgent authorisation and requested a standard one. The best interests assessor identified breaches of Article 5 and Article 8 of the Human Rights Act 1998 and decided that Mr J had been deprived of his liberty. She found the level of restriction to be disproportionate to the risk and seriousness of harm to Mr J and decided that this deprivation of liberty could not be authorised as it stood. She informed the commissioners of the service that a serious dispute between Mr J’s mother and the unit should be mediated and, if intractable, referred rapidly, by the local authority, to the Court of Protection.
A formal best interests meeting was convened urgently. As part of this, contact between Mr J and his mother was reinstated, including facilitating visits from his mother to the care home. These visits were successful. A care plan was agreed that worked towards moving Mr J into a supported living setting, close to his mother’s home. Care staff are now working to give him increased daily living skills and Mr J is no longer deprived of his liberty, but looking forward to a more independent lifestyle.
35 – NHS Digital
45 – CQC DoLS report
46 – Safeguarding, Capacity and the Law: A talk by Sir James Munby, President of the Family Division, at the National Spring Safeguarding Adults Conference of the Local Government Association ‘Leading Adult Safeguarding’ in London on Tuesday 12 March 2013
51 – CQC DoLS report