Deprivation of Liberty Safeguards
Having mental capacity means being able to understand, retain information and then make decisions based on that information.
Some people living in hospitals or care homes cannot make their own decisions about their care and treatment because they do not have the mental capacity to do so.
These people need extra protection to make sure that they do not suffer harm.
For example, in situations where delivering the necessary care requires their personal freedoms to be restricted to the point of actually depriving them of their liberty.
The Supreme Court ruling in March 2014 identified a Deprivation of Liberty as occurring when an individual who lacks capacity to make decisions about their treatment and care is subject to constant supervision and control and is not free to leave.
This could include:
- forcing a person to take medication against their will
- staff exercise complete control over a person's care and movements
- staff making all decisions about a person's assessments, treatments, visitors, being released into the care of others and where they can live
- staff refusing to discharge someone to the care of relatives or others
- preventing someone from seeing friends or family
The Mental Capacity Act / Deprivation of Liberty Safeguards (MCA DoLS) covers people in hospitals or care homes:
- who lack the capacity to make their own decisions
- when their personal freedoms need to be restricted in their best interests
Before you apply for an authorisation you should ALWAYS consider providing care or treatment in ways which avoid depriving someone of their liberty.
If you are a social worker or other health care professional and think that someone is being deprived of their liberty, you should:
- discuss the case with the hospital or care home
- advise them to apply for a Deprivation of Liberty authorisation
- report your concerns the to the Practice Manager Mental Capacity Act Deprivation of Liberty Safeguards.
When a Managing Authority (care home or hospital) completes a request for an authorisation for a Deprivation of Liberty, they
- must believe that it is necessary to deprive a person of their liberty in order to provide them with appropriate care and treatment
- should complete a request for an authorisation for a Deprivation of Liberty
Form 1 - Request for Standard Authorisation
- send the completed request to the Supervisory Body. For people normally resident in Newham, or in placements funded by London Borough of Newham this is:
Email Deprivation of Liberty inbox
Fax: 0208 430 1022
Call: 0203 373 9731
- send a copy of a current care plan of the service user to the DoLS inbox
When the application is received the Newham Practice Manager Mental Capacity Act Deprivation of Liberty Safeguards will arrange for a series of assessments to decide if it is right to deprive the person of their liberty.
More information relating to requesting for a standard authorisationDepartment of Health guide for Managing Authorities
The care home or hospital will then receive an outcome from the Deprivation of Liberty Panel.
People who lack capacity maybe deprived of their liberty in other settings e.g. supported living units.
Providers who are concerned that their care plans in these settings may amount to a Deprivation of Liberty should ask the relevant care manager to consider making an application directly to the Court of Protection.
Access to Adult Social Care Team
Call: 0208 430 2000 Option 2
Text phone:18001 020 8430 2000
Not every assessment process will result in an authorisation.
However if you make an authorisation, we will appointment a representative to support the person and look after their interests.
You will need to provide the representative with information about the person's care and treatment.
You must make regular checks to see if you still need the Deprivation of Liberty.
If there has been a change in the person's situation that requires Deprivation of Liberty to be:
- temporarily suspended or
- terminated altogether
we will have to carry out a review.
If we turn down an authorisation request, you must not deprive the person of their liberty.
You will need to take alternative steps and will be advised about this.
The Mental Capacity Amendment Act (Liberty Protection Safeguards) (MC(A)A) received Royal Assent on 16 May 2019.
It is likely to come into force in October 2020. The Liberty Protection Safeguards (LPS) like DoLS, will provide a system for authorising care arrangements in England and Wales that require a person to be deprived of their liberty, in line with the UK’s obligations under article 5 of the European Convention on Human Rights.
The Deprivation of Liberty Safeguards (DoLS) will be replaced by a new scheme called the Liberty Protection Safeguards (LPS). The LPS will differ from the current DoLS process in the following ways:
- It will apply in any setting in which a person may be deprived of their liberty, not just care homes or hospitals, as with DoLS.
- The “responsible body”, which will sign off the authorisation, differs by setting, unlike under DoLS in England, where local authorities take on the role in all cases; by contrast, under LPS, local authorities will be responsible for cases in social care settings or people’s homes, hospital managers for cases in their own settings and English clinical commissioning groups or Welsh local health boards for continuing healthcare cases.
- Responsible local authorities may give care home managers responsibility for overseeing cases in their settings, which will involve commissioning assessments, arranging consultation and reporting back to the authority on whether the authorisation conditions had been met – though sign-off would remain the authority’s responsibility.
- The LPS will apply to anyone aged 16 or over, not 18, as with DoLS.
- While the tests for an authorisation under the LPS and DoLS are similar, it will no longer be required that the arrangements are in the person’s best interests under the LPS.
- A new role called Approved Mental Capacity Professional (AMCP) will be created. The AMCP will carry out assessments where it is believed that the person is objecting to the care arrangements or where they are placed in an independent hospital.
- Assessments will no longer have to be carried out by specially trained and qualified assessors – as with best interests and mental health assessors under DoLS – though assessors would need to have appropriate experience and knowledge. The only role that requires a distinct qualification and particular training under the LPS is that of the AMCP.
- While LPS authorisations, like DoLS cases, will have an initial limit of 12 months, they will be renewable, unlike with DoLS, where a fresh authorisation is required after one expires. While the first renewal will have a limit of 12 months, subsequent renewals could be for up to three years.
At present the code of practice is being written and more detail about how the scheme will run is due to be published in Spring 2020. Check this page for updates.
For further information, please contact:
Cathy Newcombe - Practice Manager for Mental Capacity Act Deprivation of Liberty Safeguards
Call: 0203 373 9731
Kay Hyatt - Practice Manager for Mental Capacity Act Deprivation of Liberty Safeguards
Call: 0203 373 3934