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Deprivation
of Liberty Safeguards (DoLS)
and the role of IMCA
Key Message for all
Health & Social Care Professionals
“The Mental Capacity Act 2005 makes Deprivation of Liberty (DoL) unlawful in cases where there is neither a Deprivation of Liberty authorisation nor a relevant decision by the Court of Protection”
Briefing Sheet – Deprivation of Liberty Safeguards, November 2007
The Deprivation of Liberty Safeguards (DoLS) apply to Care Homes and Hospitals. It is important to remember that it is unlawful to deprive a person of their liberty if they live in their Own Home, or in Supported Living. It will only be lawful to deprive somebody of his or her liberty in the above setting by following an order of the Court of Protection.
For more information on DoLS click on the links below:
Background to the Deprivation of Liberty Safeguards
Implementation of Deprivation of Liberty Safeguards
What Does Deprivation of Liberty Mean?
Key Points around Deprivation of Liberty Safeguards
What is the Role of a Paid Representative?
The new Deprivation of Liberty Safeguards for the first time provide a legal framework and safeguards to our most vulnerable members of society who lack capacity It also introduces a statutory role for the Independent Mental Capacity Act Advocate to support through the assessment process if they are unbefriended, Act as representatives in a short term, and support and advise the authorised person or the unpaid representative If extra support is needed.
Background to the Deprivation of Liberty Safeguards
In October 2004, the European Court of Human Rights (ECHR) made a Judgment in H.L versus The United Kingdom (The Bournewood judgment). This identified a failure to protect the most vulnerable people in our society who lack capacity to consent to their care and/or treatment. The outcome of this case was that people can only be deprived of their liberty by legal process with safeguards to monitor and review this decision.
Implementation of Deprivation of Liberty Safeguards
In 2008 the Government amended the Mental Capacity Act 2005 and added new provisions to the Act in the form of Deprivation of Liberty Safeguards which came into force on 1 April 2009. The Government has allocated funding to all Local Authorities for the implementation of this service and the new roles that it has created. All Local Authorities must make provision for this implementation.
What Does Deprivation of Liberty Mean?
Many people in care homes and hospitals have restriction and restraint placed upon them but this would not necessarily count for deprivation of liberty. Because of this, deprivation must be assessed on an individual basis. The following examples could be when a deprivation of liberty occurs:
• The person has no or very little limited choice about their life and where they live and these choices are made and controlled by paid professionals.
• The person is prevented from maintaining contact with the outside world within the care home or hospital.
• The person is not allowed to leave the facility.
Key Points around Deprivation of Liberty Safeguards
Once a care home or hospital (known as the Managing Authority) has identified those at risk of Deprivation of Liberty (DOL) they must apply for authorisation from the Supervisory Body (PCT or Local Authority). The Supervisory Body then commissions the six-stage assessment process. The assessment process must be completed within seven days for urgent authorisation where a deprivation is already happening, or twenty-one days for a standard authorisation where there is a proposed deprivation. Deprivation of Liberty Safeguards does not apply if the person is sectioned and receiving treatment under the Mental Health Act.
The assessment process must follow the Mental Capacity Act Code of Practice and the Deprivation of Liberty Safeguards. They must take into account the five key principles of the Mental Capacity Act and undertake six assessments:
1. Age assessment. Is the person over 18 years of age?
2. Mental health assessment. That they are not suffering from a mental disorder and they do not come under the Mental Health Act Safeguards. This assessment is usually carried out by a Section 12 doctor.
3. Mental Capacity assessment. The person lacks capacity to agree to their care or to continue to reside in the care home or hospital.
4. Eligibility assessment. They do not come under the Mental Health Act, and they are not receiving treatment under the Mental health Act.
5. Best Interest assessment. The authorisation is necessary to prevent harm and it is in the person’s best interest, subject to the authorisation.
6. No Refusals assessment. The authorisation must not conflict with a Donee or Deputy appointed by the Court of Protection or conflict with any advance directives made when the person had capacity. Assessments 1, 3, 4, 5 and 6 are usually carried out by the Best Interest Assessor and Assessment 2 is carried out by a Section 12 doctor.
The assessment must take into account the individual’s cultural beliefs, be holistic and be carried out in a person-centred approach.
An IMCA has three main roles with the new DOL safeguards:
1. Sec 39a IMCA – An IMCA will be instructed by the Supervisory Body to represent anyone without representation (unbefriended i.e. no family or friends) during the assessment process. Note: Paid carers or any other paid support cannot represent the person. Once a 39a IMCA is appointed, their role is to represent the individual throughout the assessment process to the assessors and submit reports around their findings to the assessors where appropriate but they MUST submit a final report to the Supervisory Body around the values, wishes and beliefs of the individual and their representations on the proposed authorisation.
2. Sec 39c IMCA - Once authorisation has been granted, the individual must have a paid or unpaid representative. If for any reason the paid or unpaid representative is absent, a 39c IMCA takes on this role until a paid or unpaid representative is put in place again.
3. Sec 39d IMCA - An IMCA also has the powers to work with an unpaid representative as a Section 39d IMCA. The IMCA is instructed by the unpaid representative themselves, or the Supervisory Body if they have concerns that the unpaid representative is struggling to support the authorised person throughout the authorisation.
The Supervisory Body (the
Local Authority or Primary Care Trust) must grant or deny the request of authorisation
under Deprivation of Liberty Safeguards. They must set up and agree the specific
time period of authorisation which was recommended in the assessment process.
The Supervisory Body can decrease the recommended authorisation period, i.e.
assessment recommends six months. The Supervisory Body grants three months but
they cannot increase the recommended authorisation time.
The Supervisory Body must put all authorisations in writing including:
1. The proposal of Deprivation
of Liberty.
2. Conditions attached.
3. Reasons why each
of the qualifying criteria are met.
4. Give copy of authorisation
to all involved including the IMCA who supported the relevant person. They also
have a duty to make all information available in accessible formats where needed.
What is the Role of a Paid Representative?
If authorisation has been granted and the person is unbefriended, the Supervisory Body must appoint a paid representative. IMCA Suffolk carries out the role of a Paid Representative. The responsibility of the paid representative is:
• Keep in touch with the person regularly, one hour every fourteen days approximately.
• Monitor the conditions set out in the authorisation and make sure that the Managing Authority are abiding by these.
• Support the authorised person with all matters concerning the authorisation.
• Where appropriate, trigger a review of the authorisation.
• Raise complaints on behalf of the authorised person using the organisations’ complaints procedure.
• Make an application to the Court of Protection on behalf of the authorised person.
The Deprivation of Liberty Safeguards’ Code of Practice states that the role of the paid or unpaid representative is a critical role in the Deprivation of Liberty process. They are providing the relevant person with representation and support. The best interest principals of the Mental Capacity Act apply when acting as a relevant person’s representative be it paid or unpaid and the representative provides huge safeguards to the authorised person throughout their authorisation of deprivation of liberty.