Deprivation
of Liberty
If you cannot consent to your care arrangements in a care home, there are legal protections to ensure any restrictions on your movement are necessary and in your best interests.
You have legal rights which means a process must be followed to authorise any restrictions on your ability to move freely, known as ‘deprivation of liberty’.
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Deprivation of Liberty
You have a right to liberty, protected in law (by Article 5 of the Human Rights Act). Your right to liberty is about protecting you from restrictions on your movement. If you have been assessed as ‘lacking capacity’ to consent to your care or treatment, your right to liberty can be restricted to keep you safe from harm.
So, for instance, if you have been assessed as needing to move into a care home to receive care, or go into hospital for treatment, but cannot give your consent to be there in a meaningful way, then this is likely to mean that your right to liberty is being restricted.
There are some questions to ask to help you think about whether these restrictions are a ‘deprivation of liberty’:
Am I free to leave? (is there a lock preventing you from leaving your care home? If you tried to leave your care home, would a member of staff stop you from leaving?
Am I under continuous supervision and control? (not necessarily 24-hour supervision, but a high level of observation/supervision could still be classed as a deprivation of liberty)
If you are not free to leave the care home and are under a high level of supervision, then it is likely that you are being deprived of your liberty. The care home must ensure this deprivation of liberty is legally authorised. There are safeguards to ensure you don’t have your movement restricted more than is absolutely necessary.
Deprivation of Liberty Safeguards
The Deprivation of Liberty Safeguards (sometimes called DOLS) are part of the Mental Capacity Act. DOLS are a set of checks that aim to protect you, to make sure that any care that limits your liberty is done in the ‘least restrictive’ way and is in your best interests.
The Deprivation of Liberty Safeguards (sometimes called DOLS) are part of the Mental Capacity Act. DOLS are a set of checks that aim to protect you, to make sure that any care that limits your liberty is done in the ‘least restrictive’ way and is in your best interests.
The DOLS process should not just look at where you are being asked to live or stay, but any restrictions being imposed on you as part of that. This includes any form of restraint or supervision, for example:
Regular use of sedation or medication to control behaviour
Use of physical restraint or barriers
Confining you to a particular part of the care home
These are also a potential interference with your right to liberty and must also be assessed to ensure that they are in your best interests and the least restrictive option. These kinds of restrictions should be clearly documented in your DOLS authorisation. Deprivation of Liberty Safeguarding authorisations
There are a few exceptions to DOLS. One of these is when an authorisation would conflict with an existing authority to make decisions on their behalf, such as an Attorney for Health and Welfare. This is called a ‘no refusals’ assessment.
‘The people who know them well, and are interested in their wellbeing, should be involved in this process.’
The DOLS process
DOLS set out a legal process to ensure the restriction on your liberty is authorised by law. The process includes application to the ‘supervisory body’ (the local authority), assessments and a right to challenge the decision via the Court of Protection. The people who know you well and are interested in your wellbeing should be involved in the process.
As part of the DOLS process you can be supported by a relative, friend or someone you trust, called a ‘relevant person’s representative’ (RPR). This is someone who must keep in touch with you, represent you and support you through the DOLS process (more information on this below).
It is important that the DOLS process is followed correctly to ensure these safeguards are in place and that your DOLS authorisation hasn’t run out or been delayed. Where you should be protected by a DOLS but are not, the local authority or care provider may be breaching your right to liberty (protected by Article 5 of the Human Rights Act), as well as the Mental Capacity Act.
Deprivation of Liberty application
The care home must apply to the local authority, known as the ‘supervisory body’, to request a DOLS assessment be carried out where they think they need to deprive you of your liberty. This is regardless of whether you are paying for your care or receiving financial support from a statutory body (like a local authority or the NHS).
The care home should tell you, and your representatives, that it intends to make an application. It should also include all names and contact details of those representing or supporting you in the DOLS application form, including any legal roles (such as being your Attorney for Health and Welfare). This information helps determine whether an application is appropriate, who should advocate for you and also ensures that the relevant people are involved in the process.
Assessments
The supervisory body appoints assessors, including a Best Interests Assessor (BIA), to see if the conditions are met to allow you to be deprived of your liberty. The conditions include that you lack capacity to decide yourself about the care placement and that the proposed restrictions would be in your best interests.
If any of the conditions are not met, the deprivation of liberty cannot be authorised. This may mean that the care home has to change your care plan so that you can be supported in a less restrictive way.
If the conditions are met, the supervisory body must authorise the deprivation of liberty and inform you in writing. The authorisation can be for up to one year. You do not have to be deprived of your liberty for the duration of the authorisation; the restrictions should stop as soon as they are no longer required.
You must be allocated a representative to support you through this process (see below). The assessors should also take all reasonable steps to speak to those who know you well.
If your representatives have not been contacted by the Best Interests Assessor, they may want to get in touch with the local authority and to request contact. If an application to the Court of Protection has been made about a DOLS without consulting key family members or friends, then you may want to consider a challenge. You could query whether the DOLS process was appropriately followed. If it was not, then the validity of the decision would be undermined.
‘The resident must be allocated an advocate.’
Relevant Person’s Representative (RPR)
The Relevant Person’s Representative (RPR) is a very important role and they should be appointed as soon as possible.
Your RPR has the power to:
Request a review of the DOLS authorisation.
Make formal and informal complaints on your behalf
Make an application to the Court of Protection to seek variation or termination of the authorisation.
Your RPR has legal responsibilities, including a duty to keep in contact with you and act in your best interests. Your RPR must be over 18 with no financial interest relating to the care provider. Ideally, they should also know you well, which means that close friends or family are often the most suitable candidates.
In some situations, for example, making an application to the Court of Protection, legal aid is available for this role.
How the RPR is chosen
The RPR is chosen in one of three main ways:
If you have the capacity to decide who you wish to be your RPR, then the Best Interests Assessor must recommend their appointment to the local authority.
If you don’t have capacity to choose your RPR and you have an Attorney for Health and Welfare, or a court appointed Deputy who is authorised to make this decision, then the Best Interests Assessor must recommend the appointment of the person they choose.
If neither apply, then the Best Interests Assessor must identify the best person to carry out this role. They must consider any preference you may have, or have previously indicated, as well as their ability to represent your best interests.
The only time a Best Interests Assessor may not appoint your/Attorney’s/deputy’s choice, is where the person does not meet the eligible criteria.
If someone does not meet the criteria, the Best Interests Assessor must explain the issue and offer the opportunity to nominate someone else. Similarly, if you/Attorney/deputy rejects the choice of the Best Interests Assessor, they should not be appointed.
As a last resort, the supervisory body should identify and appoint the RPR, which can be a paid representative, if no other options are available.
How will your RPR be informed?
The supervisory body should write to your RPR to let them know that they have been identified as the RPR. They should provide your RPR with information regarding the role to enable them to make an informed decision.
If you believe that the process has not been followed correctly, you should speak to the Best Interests Assessor and you may want to consider challenging the appointment on these grounds.
Support for the Relevant Person’s Representative
Where the role of RPR is taken on by a relative or friend, and is not a paid role, they are entitled to support from an Independent Mental Capacity Advocate (IMCA). The Advocate can provide the RPR with information and advice on how to carry out this role, particularly where the RPR has concerns and wishes to either seek a review or make an application to the Court of Protection.
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