Barrister Tor Butler-Cole shares a straightforward ten-point guide for carers, families and friends to lean on when a Deprivation of Liberty Safeguard is authorised for a person deemed to be lacking mental capacity.
‘Deprivation of Liberty Safeguards’ (DoLs) represent an assessment currently carried out on people who do not have the mental capacity to make their own decisions about their care. It was criticised by a 2017 Law Commission review for being too complex and bureaucratic.
1) If a person lacks capacity to decide whether to consent to being accommodated in a care home, nursing home or hospital and is deprived of her liberty, a deprivation of liberty safeguards (DOLS) authorisation is required. There are two kinds of DOLS authorisation — an urgent authorisation and a standard authorisation. An urgent authorisation is put in place by a care home or a hospital. A standard authorisation is put in place by a local authority.
2) An urgent authorisation lasts for 7 days and can then be extended for another 7 days. After 14 days have elapsed, no further urgent authorisation can be put in place in the same hospital or care home during the same period of admission.
3) A copy of the urgent authorisation must be given to the person concerned as soon as possible, together with an explanation orally and in writing that the person can challenge the authorisation by applying to the Court of Protection. If the person is not able to understand this information, another way of enabling the person to exercise their right of appeal must be found — this could be by informing a carer or family member about the authorisation, or by urgently appointing an independent mental capacity advocate for the person.
4) A standard authorisation can last for up to 12 months and can then be renewed for subsequent periods of 12 months.
5) A standard authorisation can only be granted if all these requirements are met:
a. The person is over 18
b. The person has a mental disorder or learning disability
c. The person lacks capacity to make decisions about the care arrangements
d. It is in the person’s best interests to be deprived of her liberty
e. The person is not subject to the Mental Health Act in a way that conflicts with the DOLS system. (This is a more complicated question than it might appear).
f. The person has not made an advance decision to refuse treatment which conflicts with the care they are being given, and any lasting power of attorney or a court-appointed deputy for health and welfare agrees that the person should be deprived of their liberty
6) Everyone who is subject to a standard authorisation must have a Relevant Person’s Representative appointed — called an RPR. This should be someone chosen by the person, or, if they cannot make a choice, chosen by the best interests assessor. If the person does not have any close family or friends, an independent advocate must be appointed as RPR.
7) If a standard authorisation is put in place, a copy of the authorisation must be given to the person, their RPR, and every person who was consulted when deciding whether the deprivation of liberty was in the person’s best interests. This should happen as soon as practicable.
8) The care home or hospital must explain the following information to the person and their RPR as soon as practicable after the standard authorisation is put in place, both orally and in writing:
a. What the effect of the authorisation is
b. That the person and their RPR both have the right to apply to ask the local authority to review the authorisation at any time, and a separate right to challenge the authorisation in the Court of Protection.
c. That the person and the RPR (if the RPR is a family member or friend) are entitled to ask for an independent advocate to be appointed as well, to help them exercise the right of appeal to the Court of Protection to challenge the DOLS authorisation.
9) If you think someone is being deprived of their liberty in a care home or a hospital, you are entitled to ask the care home or hospital to assess whether that is the case. If they do not respond promptly, you are entitled to ask the local authority to investigate.
10) If you want to challenge the authorisation in the Court of Protection, the person and the RPR are both entitled to free legal advice and representation. A solicitor with specialist expertise should be contacted — the Law Society can provide the names and contact details of local solicitors.