Having mental capacity means being able to understand and retain information and then make a decision 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.
Deprivation of Liberty Safeguards protect people:
- who lack mental capacity from being detained when this is not in their best interests
- to give people the right to challenge a decision
If a care home or hospital think that someone is being cared for in a way that deprives them of their liberty, they have to apply to the council for the deprivation of liberty to be legally authorised.
Newham Council is responsible for arranging for the person to have a number of assessments before deciding whether or not to grant that authorisation.
These will be carried out by two independent assessors, a doctor and the best interest assessor.
The best interest assessor can be a:
- social worker
- an occupational therapist or psychologist
The best interests' assessor will be finding out whether:
- the care or treatment is a deprivation of liberty
- in the person's best interests and necessary to prevent harm to them
This person is not involved in any planning or decision-making about the person's care or treatment.
We will consult:
- relatives and other people close to the person
- involve a special advocate in some cases
The deprivation of liberty can be authorised for a limited time. We will reassessed the situation to make sure the deprivation of liberty continues to be lawful.
We will appoint a suitable representative if the person is being deprived of their liberty and this is in their best interest. A best interest. A representative can be a family member, friend or relative.
If you believe that someone in a care home or hospital is being deprived of their liberty without authorisation, you may write to the hospital or care home about your concern and ask for an assessment.
If you have contacted the care home or hospital and did not get a satisfactory response, you may write to:
Safeguarding Adults Governance Team
West Wing Second Floor
1000 Dockside Road
Fax:020 8430 1022
Telephone: 020 3373 9731
Alternatively you can send an email highlighting your concerns.
Deprivations of liberty can happen in any setting and when they arise because of a care plan arranged by health and social services, these arrangements may need to go to court of protection for oversight. Please contact:
Access to Adult Social Care Team
Call: 0208 30 2000 Option 2
Textphone:180010208 430 2000
If you are currently subject to a Deprivation of Liberty authorisation and wish to have it reviewed, please contact us or the care home manager who will request a review on your behalf.
Court of protection - more information
You can apply to the court of protection to appeal against the Deprivation of Liberty authorisation.
For further information email the Deprivation of Liberty inbox using the link above or click on the link below.
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.