deprivation of liberty safeguards (dols) policy and
TRANSCRIPT
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Deprivation of Liberty Safeguards (DoLS)
Policy and Procedure Document to Support
the Implementation of the DoLS process in
Stockton-On-Tees
Version No: 1.4.
Date: October2018
Date of review : October 2019, or earlier if required
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Contents
Glossary of Terms 6
SECTION A: Scope, purpose and background 7
1. Scope 7
2. Purpose and aims 7
3. Introduction and background 7
4. Who is covered by the Deprivation of Liberty Safeguards? 9
5. Relevant Person’s Representative 9
SECTION B: The DoLS Procedure for Managing Authorities
12
1. General information 12
2. How to apply for authorisation of Deprivation of Liberty 12
3. Notification of the outcome of the DoLS authorisation decision 13
4. What happens when an application for Authorisation of Deprivation of Liberty is granted
14
5. What happens when an application for Authorisation of Deprivation of Liberty is not granted
14
6. Monitoring and Review of Deprivation of Liberty Safeguards Authorisations 15
7. Requesting a further Standard Authorisation 18
8. Suspending a Standard Authorisation 18
9. When a person is admitted to a general hospital while subject to a DoLS authorisation 18
10. Notifying the Supervisory Body of changes in circumstances 19
11. Raising concerns 19
SECTION C: Procedure for Stockton-On-Tees Borough Council
20
1. Processing applications for authorisation of Deprivation of Liberty 20
2. Administrative process on receipt of applications for authorisation of Deprivation of Liberty
20
3. Authorisation of Deprivation of Liberty 21
4. Involving an IMCA (Independent Mental Capacity Advocate) 22
5. Other responsibilities
22
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SECTION D: Assessments Procedure for Deprivation of Liberty 23
1. How applications for Deprivation of Liberty are assessed 23
2. Best Interests assessments 23
3. Mental Health Assessments 25
4.
5.
Collaboration/co-operation
Proof of Identification
25
25
SECTION E: Reviews 26
1. Review of a Deprivation of Liberty authorisation 26
2. Social Work review of people subject to a Deprivation of Liberty Safeguards authorisation
26
SECTION F: Challenges/Court of Protection 27
1.
2.
3.
Challenges to an authorisation of Deprivation of Liberty
2. Li The Process for Section 21a Challenges
Links Links to further information
27
28
28
SECTION G: Ordinary Residency/out of area placements 29
1. Out of area placements 29
2. People who fund their own care 29
3. People of no fixed abode 29
4. Where there is a dispute 29
5. Overview of responsible supervisory body
30
SECTION H: Unauthorised Deprivation of Liberty 32
1. Concerns about unauthorised Deprivation of Liberty 32
2. Responsibilities of the supervisory body 32
3. Outcome of the assessment 33
4. Links to further information
34
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SECTION I: Deprivation of Liberty in Community Settings 35
1. Background 35
2. Information to be completed 35
3. Rule 1.2 Representative 36
4. Management of Cases 37
5. Links to further information 37
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Glossary of Terms
Best Interests Assessor The person qualified to undertake the assessment, for the purpose of the DoLS, to determine whether DoL is in the relevant person’s best interests, is necessary to prevent harm, and is a proportionate response to the likelihood and seriousness of that harm.
Court of Protection The specialist court for all issues relating to people who lack capacity to make decisions for themselves.
Independent Mental Capacity Advocate (IMCA)
The person qualified to provide support and representation for a relevant person who lacks capacity to make specific decisions, where a relevant person has no one else to support them. The IMCA service was established by the Mental Capacity Act 2005 and is not the same as an ordinary advocacy service.
Managing Authority The person or body with management responsibility for the hospital or care home in which a person is, or may become, deprived of their liberty.
Mental Health Assessor The person qualified to complete the assessment, for the purpose of the DoLS, to establish whether the relevant person has a mental disorder.
Relevant Person The person who is, or may become, deprived of their liberty.
Relevant Person’s Representative The person, independent of the relevant hospital or care home, appointed to maintain contact with the relevant person, and to represent and support the relevant person in all matters relating to the operation of the DoLS.
Standard Authorisation of Deprivation of Liberty
An authorisation given by a supervisory body, after completion of the statutory assessment process, giving lawful authority to deprive a person of their liberty in the relevant hospital or care home.
Supervisory Body The local authority responsible for considering requests for DoL received from managing authorities, commissioning the statutory assessments and, where all the assessments agree, authorising DoL.
Urgent Authorisation of Deprivation of Liberty
An authorisation given by a managing authority for a maximum period of seven days, which may be extended by a maximum period of seven days by a supervisory body, that gives the managing authority lawful authority to deprive a person of their liberty in a hospital or care home while the standard authorisation DoL process is undertaken.
A more extensive list of key words and phrases can be found on pages 114-120 of the Mental Capacity
Act 2005 Deprivation of Liberty Safeguards Code of Practice to supplement the main Mental Capacity Act
2005 Code of Practice (Department of Health, 2008). See:
http://webarchive.nationalarchives.gov.uk/+/www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/Men
talCapacity/MentalCapacityActDeprivationofLibertySafeguards/index.htm
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SECTION A: SCOPE, PURPOSE AND BACKGROUND
1. SCOPE
1.1. The policy and procedures set out in this document should be used in conjunction with the Mental
Capacity Act 2005 Deprivation of Liberty Safeguards (DoLS) Code of Practice (2008). This Code of
Practice, along with the Mental Capacity Act Code of Practice (2005), should remain the primary
reference for staff working within the safeguards.
1.2. The following legislative frameworks and documentation should also be considered:
The Care Act 2014
The Mental Health Act 1983
The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary
Residence) Regulations 2008
The Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative)
Regulations 2008
Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative)
(Amendment) Regulations 2008
Stockton-On-Tees Borough Council Safeguarding Adults Policy
Stockton-On-Tees Borough Council Care Managers’ Handbook
Stockton-On-Tees Borough Council Mental Capacity Act Policy
1.3. Professionals working within the DoLS are expected to keep themselves informed of developments in
DoLS case law, and evidence this in their practice.
2. PURPOSE AND AIMS
2.1. To support staff in complying with the Mental Capacity Act 2005 Deprivation of Liberty Safeguards
(DoLS) Code of Practice (2008).
2.2. To support staff in understanding how to apply the DoLS and the processes used within the safeguards.
3. INTRODUCTION & BACKGROUND
3.1. The Mental Capacity Act Deprivation of Liberty Safeguards (DoLS) were introduced in 2009 and are
underpinned by the Mental Capacity Act (2005). The Mental Capacity Act provides a statutory
framework for people who lack capacity to make decisions for themselves, or who have capacity and
want to make preparations for when they may lack capacity in the future. It sets out who can make
decisions, in which situations, and how they should go about this. The legal framework is supported by
the Mental Capacity Act 2005 Code of Practice (2007), and additional guidance is provided in the MCA
DoLS Code of Practice (2008). Professionals (both internal and external to Stockton-On-Tees Borough
Council) working within the MCA DoLS have a formal duty to have regard to these Codes.
3.2. The statutory principles set out in the Mental Capacity Act must be adhered to by all staff who have a
duty of care towards an individual who is, or may be, deprived of their liberty. The five statutory principles
are:
1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help
him to do so have been taken without success.
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3. A person is not to be treated as unable to make a decision merely because he makes an unwise
decision.
4. An act done, or a decision made, under the Mental Capacity Act for and on behalf of a person
who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or a decision is made, regard must be had to whether the purpose for
which it is needed can be as effectively achieved in a way that is less restrictive of the person’s
rights and freedom of action.
3.3. The Mental Capacity Act (2005) was amended to provide safeguards for people who lack capacity
specifically to consent to treatment or care in either a hospital or a care home that, in their own best
interests, can only be provided in circumstances that amount to a Deprivation of Liberty, and where
detention under the Mental Health Act 1983 is not appropriate for that person at that time. This
amendment was in response to a breach of Article 5 of the European Convention on Human Rights
(ECHR). The DoLS therefore provide legal protection for those vulnerable people who are, or may
become, deprived of their liberty in a hospital or care home. They ensure that any person deprived of
their liberty has an appointed representative to represent their interests, and provide a legal framework
to bring challenges to an authorisation speedily before a court. If a person lacks capacity to consent to
care arrangements involving a deprivation of liberty, authorisation is needed either through the
Deprivation of Liberty Safeguards in the Mental Capacity Act or from the Court of Protection.
3.4. The Supreme Court has ruled that a Deprivation of Liberty can occur in domestic settings (including
supported living arrangements) where the State is responsible for imposing such arrangements. In these
instances, the deprivation must be authorised by the Court of Protection.
3.5. Following the cases “P v Cheshire West and Chester Council” and “P & Q, the Official Solicitor v Surrey Council” the Supreme Court v Cheshire West and Chester Council” and “P & Q, the Official Solicitor v Surrey Council” (commonly referred to as the “Cheshire West Judgement”), the
legal definition of, and the test for Deprivation of Liberty must be followed. For a person to be deprived of
their liberty, they must be:
subject both to continuous supervision and control and
not be free to leave.
This is known as the “acid test” for Deprivation of Liberty.
The Supreme Court has also said that that the following are not relevant when determining whether a
Deprivation of Liberty is occurring:
The person’s compliance or lack of objection to the care arrangements.
The relative normality of the placement (whatever the comparison made; each person’s circumstances must be considered individually).
The reason or purpose behind a particular placement.
3.6. Each individual case for Deprivation of Liberty must be assessed on its own circumstances. The MCA
DoLS Code of Practice (2008, p. 17) cites case law judgements which indicate which factors can be
relevant to identifying whether steps taken involve more than restraint and amount to a Deprivation of
Liberty. These include judgements where:
Restraint is used, including sedation, to admit a person to an institution where that person is
resisting admission.
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Staff exercise complete and effective control over the care and movement of a person for a
significant period.
Staff exercise control over assessments, treatment, contacts and residence.
A decision has been taken by the institution that the person will not be released into the care of
others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate.
A request by carers for a person to be discharged to their care is refused.
The person is unable to maintain social contact s because of the restrictions placed on their access
to other people.
The person loses autonomy because they are under continuous supervision and control.
3.7. Deprivation of Liberty is ultimately a legal decision and there will be new and emerging case law shaping
its definition over time. Stockton-on-Tees Borough Council will support staff in keeping up to date with
case law, taking account of further relevant legal developments which will have a bearing on their
practice within the DoLS.
4. WHO IS COVERED BY THE DEPRIVATION OF LIBERTY SAFEGUARDS?
4.1. The DoLS apply to people in England and Wales who have a mental disorder and who lack capacity to
consent to their care or treatment. A large number of these people will be those with significant learning
disabilities, or people with dementia or some other disability, but they could also include people who
have certain other neurological conditions (e.g. brain injury).
4.2. The scope of the DoLS covers people who are receiving care and treatment in hospitals and care
homes, in circumstances that amount to a Deprivation of Liberty. The authorisation must relate to the
individual concerned and to the hospital or care home where they are receiving the care and treatment.
Where a deprivation is occurring outside of these settings, authorisation will need to be sought from the
Court of Protection.
4.3. DoLS cannot apply to people detained under the Mental Health Act 1983 (but they can apply to people
who have previously been detained in hospital under the Mental Health Act).
4.4. The DoLS apply to people aged 18 and over. If the issue of depriving a person under the age of 18
arises, other safeguards such as section 25 of the Children Act 1989, or use of the Mental Health Act
1983, must be considered. Where a young person aged 16-18 is identified as being deprived of their
liberty, the deprivation must be authorised by the Court of protection.
5. RELEVANT PERSON’S REPRESENTATIVE
5.1. A key role in the DoLS is that the person subject to an authorised Deprivation of Liberty will have an
appointed Relevant Person’s Representative, independent of commissioners and providers of the
services they are receiving, to represent and support the person in all matters relating to the DoLS.
5.2. Stockton-On-Tees Borough Council must appoint a named Relevant Person’s Representative for every
person for whom a standard authorisation has been granted, at the time of the authorisation or soon as
possible and practical thereafter. The role of the RPR is to:
maintain face-to-face contact with the relevant person, and
represent and support the relevant person in all matters relating to the DoLS,
including, if appropriate, triggering a review, using an organisation’s complaints
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procedure on the person’s behalf, or making an application to the Court of
Protection.
5.3. Eligibility to be an RPR
5.3.1. To be eligible to be the RPR, the person must be:
18 years of age and over
able to keep in regular contact with the relevant person, and
willing to be appointed
5.3.2. The person must not:
have a financial interest in the relevant person’s Managing Authority
be a relative of a person who has a financial interest in the relevant person’s care home
be employed by, or providing service to Managing Authority where the relevant person is subject
to a DoLS authorisation
be employed by a hospital in a role that is, or could be, related to the person’s treatment or
care;
be employed to work in the relevant person’s Supervisory Body in a role that is, or could be,
related to the person’s case.
5.3.3.There is no presumption that that the RPR should be the same as the person who is their nearest relative
for the purposes of the MHA 1983, even where the relevant person is likely to be subject simultaneously
to an authorisation under these safeguards and a provision of the MHA 1983. However, there is nothing
to stop the RPR being the same as their nearest relative under the MHA 1983.
5.3.4. Appointment of a RPR is an addition to the appointment of a donee or deputy, and does not affect any appointment or function of a donee or deputy. However, a donee or deputy may themselves be appointed as an RPR if they meet the above eligibility criteria.
5.4. Termination of RPR Appointments
5.4.1. Appointments will be terminated in any of the following circumstances:
The standard authorisation comes to an end and no new application for authorisation is made, or where a new application has been made but is not granted.
The relevant person, if they have capacity to do so, objects to the representative continuing in their role and a different person is selected to be their representative instead.
A donee or deputy, if it is within their authority to do so and the relevant person lacks the capacity to decide, objects to the representative continuing in their role and a different person is selected to be the representative instead.
The supervisory body becomes aware that the representative is no longer willing or eligible to continue in the role.
The supervisory body becomes aware that the relevant person’s representative is not keeping in regular contact with the person and/or not representing or supporting them effectively.
The RPR is not acting in the person’s best interests.
The RPR has died.
5.4.2. If Stockton-On-Tees Borough Council becomes aware that the RPR may not be keeping in touch with
the person, is not acting in the relevant person’s best interests, or is no longer eligible, the DoLS team
will contact the RPR to clarify the situation before deciding whether to terminate the appointment.
5.4.3. When the appointment of the RPR ends, Stockton-On-Tees Borough Council must give notice as soon
as possible to:
the appointed person
the relevant person
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any donee or deputy of the relevant person
any IMCA involved
every interested person named by the BIA in their report as somebody they have consulted in carrying out their assessment
the Managing Authority.
This notice should indicate when the appointment ended and should explain the reason why.
5.4.4.. Where it is necessary to terminate an appointment of RPR, this must be completed by the DoLS Team
using DoLS Form 8 (Termination of Representative). 5.4.5.. If the role of the RPR is terminated whilst an Authorisation is still in place, Stockton-On-Tees Borough
Council must appoint a suitable replacement as soon as possible. If the RPR appointment has ended because they are no longer eligible, the BIA must also seek the relevant person’s view on a suitable replacement.
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SECTION B: THE DEPRIVATION OF LIBERTY SAFEGUARDS PROCEDURE
FOR MANAGING AUTHORITIES
1. GENERAL INFORMATION
1.1. An overview of the DoLS process is provided in Annex 1 of the MCA 2005 DoLS Code of Practice (see
p. 107).
1.2. Considerations for Managing Authorities before an application for authorisation of Deprivation of Liberty
is made, are detailed in Annex 2 of the MCA 2005 DoLS Code of Practice (see pp. 108-109).
1.3. Managing Authorities must notify the Care Quality Commission (CQC) of all applications made for
Deprivation of Liberty, and the outcome of any application made.
1.4. From 1st June, 2015, Stockton-On-Tees Borough Council will require all paperwork within the DoLS
process to be completed using the agreed, revised forms developed by Department of Health (DH) and
Directors of Adult Social Services (ADASS). The latest versions of these forms and the guidance for
their use can be accessed at http://www.adass.org.uk/mental-health-Drugs-and-Alcohol/key-
documents/New-DoLS-Forms/.
Managing Authorities can also access the relevant forms on the DoLS pages of Stockton-on-Tees
Borough Council’s website at https://www.stockton.gov.uk/adult-services/safeguarding-adults/the-
deprivation-of-liberty-safeguards-dols/
1.5. All completed DoLS paperwork must be sent directly and securely to the Stockton-on-Tees Borough
Council DoLS team, by:
email (preferred) to [email protected]
Where the sender does not have access to a secure email address, documents must be
password-protected using the unique password assigned by the DoLS team to each
managing authority/assessor OR
hand delivery, in a sealed envelope marked “Private and Confidential”. Documents must not be
delivered in clear plastic wallets/folders.
Paperwork must be typed wherever possible, and signatures must be completed by hand.
2. HOW TO APPLY FOR AUTHORISATION OF DEPRIVATION OF LIBERTY
2.1. Managing Authorities should, wherever possible, make the necessary arrangements to apply for a
Standard Authorisation in advance, before the need for a Deprivation of Liberty begins. Where the need
for the person to be deprived of their liberty is so urgent that it needs to occur immediately, the Managing
Authority can grant an urgent authorisation for a maximum of seven days, while obtaining a standard
authorisation. Applications to request a standard authorisation for Deprivation of Liberty and to notify of
an urgent authorisation must be completed using DoLS Form 1.
2.2. The process for Managing Authorities to request authorisation of a Deprivation of Liberty, or notify
Stockton-On-Tees Borough Council of an urgent authorisation of Deprivation of Liberty is illustrated in
Figure 1 below.
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Figure 1 Process to request authorisation of a Deprivation of Liberty, or notify the Supervisory Body of an urgent
authorisation of Deprivation of Liberty
Unplanned situation: person may
already be deprived of her/his liberty
Planned situation: request to be
made in advance
Make sure you have the following information:
The person’s age (they must be 18+).
Details of the essential care and/or treatment that you are providing for the person.
Details of the restrictions that are being used in delivering the above care and treatment,
and what less restrictive options have been considered – HOW THE PRINCIPLES OF
THE ACID TEST FOR DEPRIVATION OF LIBERTY ARE MET
Details of what harm would come to the person if they were not to be deprived of their
liberty.
Relevant assessments and care plans.
Details of the person’s family or close friends (if any).
Details of the right supervisory body.
COMPLETE DEPRIVATION OF LIBERTY SAFEGUARDS FORM 1
(Request for Standard Authorisation and Urgent Authorisation)
Tell the relevant person and all other interested persons of the request for a DoLS
authorisation
Take steps to help the person understand the effect of the authorisation and their right
to appeal
Sign & date the form at Page 4
Date the form on the day that
the person will be admitted to
the care home/hospital
Send the completed form AS
SOON AS POSSIBLE to the
Supervisory Body with relevant
assessments and care plans
Sign & date the form at Pages
4 & 6
Date the form on the day that
you are completing the form
Send the completed form ON
THE SAME DAY to the
Supervisory Body with relevant
assessments and care plans
Give interested persons copies of the forms.
If suitable, offer access to information in print or on the internet about the right of challenge and
what happens if a person dies when there is an authorised DoL.
Be ready to give assessors (and IMCA if involved) prompt access to:
the person (to interview in private);
relevant notes;
staff involved in the care of the person.
Please notePlease note
3. NOTIFICATION OF THE OUTCOME OF THE DOLS AUTHORISATION DECISION
3.1. The Managing Authority will be informed of the outcome of the decision (and the authorisation period
where the authorisation has been granted) by email on the day of the decision, by the DoLS Team.
Copies of the decision record and assessments will be attached to this email. This documentation
should be retained on the relevant person’s file.
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3.2. Where a DoLS authorisation is not granted, the DoLS Team will notify the manging authority by telephone
prior to the decision email being sent. Copies of the decision record and assessments will be attached
to this email and this documentation should be retained on the relevant person’s file.
4. WHAT HAPPENS WHEN AN APPLICATION FOR AUTHORISATION OF DEPRIVATION OF
LIBERTY IS GRANTED
4.1. Where Authorisation is granted a Relevant Person’s Representative will be appointed. This appointment
lasts for the duration of the authorisation.
4.2. The Managing Authority must ensure that the relevant person’s representative and the relevant person
understands:
i. The effect of the authorisation ii. The right to request a review iii. The complaints procedures available to them iv. The right to apply to the court of protection v. The right to request an Independent Mental Capacity Advocate (IMCA)
4.3. The Managing Authority must also ensure that it takes into account communication and language needs when providing this information. Information should be provided on an ongoing basis and the care should evidence that this has taken place as part of routine recording in relation to an authorisation of Deprivation of Liberty.
4.4. A Relevant Person’s Representative must maintain face to face contact with the relevant person on at
least a monthly basis. If the Managing Authority feels there has been insufficient or inappropriate contact
this should be raised informally with the RPR. If the situation continues, the Managing Authority must
inform the relevant person’s Care Manager, who will then notify the DoLS team.
4.5. The Managing Authority should accommodate any visits by the RPR to the relevant person in order to facilitate regular contact. It must also ensure that it monitors and records the level/method of contact between the relevant person and their representative. If there are concerns about the level of contact, the care home manager should raise this informally with the RPR. The level of contact will also be monitored via monitoring information requested by the DOLS Team, and care-management visits/reviews.
4.6. The Supervisory Body and Managing Authority must inform the RPR of any sources of support or information that might help them in their role, including how to access support from their local IMCA.
5. WHAT HAPPENS WHEN AN APPLICATION FOR AUTHORISATION OF DEPRIVATION OF
LIBERTY IS NOT GRANTED
5.1. When an application for authorisation of DoL is not granted, the Managing Authority must ensure that a
review of the person’s care and treatment plan is completed immediately to reduce the restrictions and
therefore avoid unlawful Deprivation of Liberty. Amended care plans should be retained in the person’s
file.
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6. MONITORING AND REVIEW OF DEPRIVATION OF LIBERTY SAFEGUARDS AUTHORISATIONS
6.2. The Managing Authority will complete a DoLS monitoring audit form where requested, and return this
to the DoLS Team within the specified timeframe. Where requested information is not received by the
managing authority, the DoLS team will notify Stockton Borough Council’s Corporate Procurement
Team.
6.3. The Relevant Person’s Local Authority annual care-management review will be arranged by the client’s
Social Work team so that the review will take place approximately 8 weeks prior to the end of the current
authorisation of DoL.
6.2. The process for monitoring of the DoLS Authorisation is set out in Figure 1 (below).
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Figure 1: Monitoring of DoLS Authorisations
Monthly active DoLS list sent to
Team Managers by DoLS Team
-Name, DoLS Ref, Start & End
Date, Review Date
Team clerk uploads DoLS
documents and sends
task note to Care
Manager (as per SPD)
DoLS less than 12
months authorisation
OR respite ?
Team clerk uploads DoLS
Doc to Care Director with
annual review date (as per
SPD)
Managing Authority –
ongoing monitoring of
DoLS authorisations
Use DoLS monitoring flowchart
for Managing Authorities
Any changes identified
via DoLS monitoring
checklist?
Managing Authority Notify
Care Manager and send
DoLS Form 10 where
necessary to DoLS Team
(Review)
DoLS
Form 10
Approx 5 months after authorisation
DoLS monitoring audit checklist sent
by DoLS Team to Managing
Authority
DoLS Audit Monitoring
Checklist Form completed to
be returned to DoLS team
Form returned
within 3 weeks?
Receipt of form
logged on DoLS
database
Straightforward/
no changes re: DoLS
authorisation?
DoLS Team contact care home to
prompt return
Form returned
within 1 week?
DoLS Team flag issue
with Commissioning
Team
Action as per information on
form (e.g. review/RPR
change etc)
Notify Managing Authority/SW
and otherinterested persons of
outcome
Social Worker completes annual care-
management review, approximately 2 months
prior to end of DoLS authorisation with prompt to
Managing Authority to submit DoLS Form 2
YES
YES
YES
NO
NO
Managing Authority –
ongoing monitoring of
DoLS authorisations
NO
YES
YES
NO
Self-funding clients to be
offered annual care-
management review
DoLS Form 5 (granted) sent to
Managing Authority for each
authorisation, and monthly list of
all DoLS
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6.3. Managing Authorities have a responsibility to monitor individual DoL authorisations on an ongoing basis
to identify whether the relevant person’s situation or circumstances change, meaning that the DoL
authorisation may no longer be appropriate. Where this is considered to be the case, the Managing
Authority should speak to the relevant person’s Care Manager in the first instance.
6.4. The Managing Authority must set out in the relevant person’s care plan clear roles and responsibilities for
monitoring, and confirm under what circumstances a review is necessary.
6.5. MONITORING OF CONDITIONS
6.5.1. Where an authorisation of DoL has conditions attached to it, this will be noted in the decision email to
the managing authority. It is the managing authority’s responsibility to ensure that any conditions
attached to the authorisation decision are implemented and met.
6.5.2. The managing authority will complete a DoLS Conditions Monitoring Form where this requested, and
return this within the specified timeframe.
6.5.3. Where it is not possible for the managing authority to meet the stated conditions, this must be
communicated to the DoLS team.
6.5.4. Where requested information is not received by the managing authority, the DoLS team will notify
Stockton Borough Council’s Corporate Procurement Team.
6.6. REVIEW OF A DoLS AUTHORISATION
6.6.1. Where it has been identified that the person’s situation or circumstances have changed, and the DoL
authorisation is no longer considered to be appropriate, the Managing Authority must request a formal
review of the authorisation using DoLS Form 10.
6.6.2. Managing Authorities may receive written requests for reviews from the relevant person or the Relevant
Person’s Representative. Standard templates (Letter 3, Letter 4) are provided by the Department of
Health for this. Where the Managing Authority is in receipt of such requests, it should make a formal
request for a review of the authorisation using DoLS Form 10.
6.6.3. In essence the grounds for a review of a DoLS authorisation are:
i. The person no longer meets one of the six requirements
ii. The reason why the person meets one of the requirements is different
iii. There has been a change in the person’s circumstances and the conditions need to be
varied.
6.6.4. If Stockton-On-Tees Borough Council decides that any of the qualifying requirements are reviewable, it
will commission an assessment in relation to these. If at least one of the requirements were assessed
as not having been met, the Standard Authorisation will cease. If the assessment/s confirmed that the
person continues to meet the requirements to which they relate, the Standard Authorisation will continue
to be in force until the date given for the original Standard Authorisation. The DoLS Team will notify the
Managing Authority of the outcome of the review using DoLS Form 10.
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6.6.5. It is also possible to request a review of the conditions attached to DoLS authorisation. Stockton-On-
Tees Borough Council may decide that there has been a change in the person’s case, but this does not
require a change in conditions, or it may decide that there has been a change and the conditions
therefore need to be varied. The DoLS Team will notify the Managing Authority of the outcome of the
review using DoLS Form 10.
6.6.6. A DoL authorisation should not simply expire; it should be reviewed to bring it to an end. This should be
requested using DoLS Form 10. The exception to this is if a new setting has requested a new DoL
authorisation. In this instance, the original DoL authorisation ends and is superseded by the new
application for DoL authorisation.
7. REQUESTING A FURTHER STANDARD AUTHORISATION
7.1. If, when an existing DoL authorisation is coming to an end, the Managing Authority considers that the
authorisation needs to continue, DoLS Form 2 (Request for Further Standard Authorisation) must be
completed and sent securely to the DoLS Team within 28 days, but no later than 21 days prior to the
authorisation end date.
8. SUSPENDING A STANDARD AUTHORISATION
8.1. A Standard Authorisation may be suspended (for a maximum of 28 days) only when the relevant person
is no longer eligible for DoLS because of a conflict with the Mental Health Act. This is usually because
the person has been detained in a hospital under the Mental Health Act, or because there is some
conflict with a requirement imposed on the person by the Mental Health Act. The Standard Authorisation
need not be suspended if, for example, the relevant person is admitted to a general hospital on physical
ill health grounds.
8.2. If the Managing Authority suspends an authorisation, it must notify the DoLS Team using DoLS Form
7. After 28 days, the Managing Authority should inform the DoLS Team whether the relevant person
has returned within the time period (meaning that the DoL authorisation would remain in force), or
whether the person has not returned. If the person has not returned at the end of 28 day period, the
DoL authorisation will cease to be in force.
9. WHEN A PERSON IS ADMITTED TO A GENERAL HOSPITAL WHILE SUBJECT TO A DOL
AUTHORISATION
9.1. If the hospital requests an authorisation for Deprivation of Liberty, then the existing authorisation will
remain until a new standard authorisation comes into force in the new setting. Once a new standard
authorisation comes into force, the previous standard authorisation will automatically end, and the
Managing Authority does not need to do anything.
9.2. If the absence is likely to be short, and/or the hospital does not request an authorisation to deprive the
person of liberty, the existing authorisation will remain in place.
9.3. If the absence is likely to be for a long period, or there is a likelihood that the person will not return to the
setting, the Managing Authority should use the relevant section in DoLS Form 10 to inform the
Supervisory Body that the DoL Authorisation needs to be reviewed and ceased.
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10. NOTIFYING THE SUPERVISORY BODY OF CHANGE IN CIRCUMSTANCES
10.1. The Managing Authority must notify the DoLS Team where there has been a change in the relevant
person’s circumstances. This will include but will not be limited to:
i. A person’s admission to another setting where this may mean that assessments may need to
be cancelled or re-arranged.
ii. A person’s planned absence which may mean that assessments need to be cancelled or re-
arranged.
iii. A person’s return to the care setting where this may mean that assessments need to be re-
arranged.
iv. The death of the relevant person. This should be reported using DoLS Form 15.
11. RAISING CONCERNS
11.1. Anyone may raise concerns that an individual may be being deprived of their liberty without legal
authorisation. In these circumstances, a standard Letter 1 should be used. If the concern is raised with
Care Home staff, this must be recorded in the resident’s file. The Managing Authority must respond to
the person who has raised the concern within 24 hours.
11.2. In the first instance the Managing Authority should attempt to resolve the matter informally with the concerned person/s through discussion and adjustments to the care arrangements for the relevant person wherever appropriate, in order to avoid the unlawful Deprivation of Liberty. A record of any discussions and adjustments must be recorded on the relevant person’s file.
11.3. If the Managing Authority considers it necessary to continue with the care regime, it must apply for an
authorisation of Deprivation of Liberty using DoLS Form 1.
20
SECTION C: PROCEDURE FOR STOCKTON-ON TEES BOROUGH COUNCIL
1. PROCESSING APPLICATIONS FOR AUTHORISATION OF DEPRIVATION OF LIBERTY
1.1. An overview of the key processes following receipt of DoLS Form 1 given in Figure 2 below. Figure 2: Key processes for urgent authorisations and applications for authorisation of Deprivation of Liberty.
Action Responsibility
Urgent Authorisations
Standard Authorisations
Allocate Best Interests Assessor from rota. Once BIAs have received their weekly allocation of DoLS, independent BIAs will be approached.
DoLS Administration Team
Instruct Mental Health Assessor to complete Mental Health, Mental Capacity and Eligibility assessments.
DoLS Administration Team
Contact managing authority to arrange assessments.
BIA MHA
Authorisation Decision Stockton-on-Tees Borough Council Signatory
Managing Authority notified of outcome of decision by telephone.
DoLS Administration Team
Copy of decision record only to named interested persons and Social Worker Copy of decision record and assessments to Relevant Person, RPR, and the Managing Authority.
DoLS Administration Team.
2. ADMINISTRATIVE PROCESS ON RECEIPT OF APPLICATIONS FOR DEPRIVATION OF LIBERTY
2.1. On receipt of DoLS Form 1, the DoLS Team will:
Check the accuracy of the information the form, and request amendments from the Managing
Authority where necessary.
Log receipt of the application on the DoLS database.
Set up an electronic client file.
Confirm the ordinary residency status of the relevant person via Care Director records.
Confirm with Tees Esk and Wear Valleys NHS FT (TEWV) whether the person is active to a
Consultant Psychiatrist (where this is the case, the Consultant Psychiatrist will complete the Mental
Health Assessment).
Arrange Best Interests and Mental Health assessments.
Instruct an Independent Mental Capacity Advocate (IMCA) where this need has been identified.
2.2. Completed assessments will be returned to a named person in the DoLS team via the
[email protected] address. These will be saved electronically in an individual
client folder.
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2.3. When all assessments have been received, the DoLS Team will place an electronic copy of the following
DoLS forms in the relevant signatory’s folder by noon on the day of signing:
DoLS Form 1 (Request for Standard Authorisation and Urgent Authorisation)
DoLS Form 3 (Best Interests Assessment) or DoLS Form 3a (No Deprivation of Liberty)
DoLS Form 4 (Mental Health Assessment)
DoLS Form 5 (Standard Authorisation Granted) OR DoLS Form 6 (Standard Authorisation Not
Granted)
3. AUTHORISATION OF DEPRIVATION OF LIBERTY
3.1. Applications for authorisation of Deprivation of Liberty will be authorised by named signatories at
senior management level in Stockton-On-Tees Borough Council.
3.2. Where an authorised Deprivation of Liberty is granted, this decision will be recorded on DoLS Form 5
(Standard Authorisation Granted). Where there is no authorised Deprivation of Liberty, or where the
assessment process was started but not concluded, this will be recorded on DoLS Form 6 (Standard
Authorisation not granted).
3.3. Signatories will complete the required paperwork electronically.
3.4. Once the outcome of the authorisation decision is known, the DoLS Team will inform the Managing
Authority of the decision. This will be communicated by email or by telephone when an email address
has not been provided. Letters addressed to the relevant person and the managing authority detailing
the outcome of the decision, the authorisation period and a copy of the assessments and decision record
will be attached to the email (these will be sent by second class post where an email address has not
been provided). The decision record will be sent to the appointed Relevant Person’s Representative (by
email where this is an independent RPR, and by second class post within five working days of the
authorisation decision where this is an unpaid RPR). Copies of the assessments will be sent on receipt
of the RPR’s signature.
3.5. A copy of the authorisation decision only will be sent to the interested persons named on the
assessments.
3.6. Once the signed documentation has been received confirming the selected person’s acceptance of
appointment to the role of RPR, the DoLS team will send a family and friends feedback questionnaire
to the appointed RPR.
3.7. Where a signature to confirm appointment to the role of RPR has not been received at the point of
assessment, the DoLS Team will send an appointment of RPR form to the Managing Authority. Where
a signature has not been obtained or returned to the DoLS Administration team after five weeks, the
DoLS Team will instruct a paid RPR to fulfil this role. Where there has been a change to the named
RPR, the DoLS Team will notify the relevant person, the Managing Authority and all interested persons
in writing.
3.8. Hospital/respite cases
3.8.1. Where a signature to confirm appointment to the role of RPR has not been received at the point of
assessment, the DoLS Team will send a letter to the RPR requesting the return of the signed
appointment of Relevant Person’s Representative form. If this has not been received within three
working weeks, a further letter requesting a signature will be sent to the recommended appointment to
22
RPR. If after another two working weeks a signed form has not been received, the DoLS Team will
instruct a paid RPR to fulfil this role. Where there has been a change to the named RPR, the DoLS
Team will notify the relevant person, the Managing Authority and all interested persons in writing.
4. INVOLVING AN IMCA (INDEPENDENT MENTAL CAPACITY ADVOCATE)
4.1. The relevant person or their representative (if this is a family member or friend) has a statutory right to
access an IMCA. Stockton-on-Tess Borough Council must instruct an IMCA if requested. A request can
be made more than once during the authorisation period.
4.2. Stockton-On-Tees Borough Council may wish to instruct an IMCA as part of a review or appeal to the
Court of Protection if an IMCA has not been requested but where there is an identified need.
4.3. The IMCA can:
provide additional support and help for someone to communicate their views
help the relevant person and their RPR to understand the effects of an Authorisation, and what it will mean for them.
help the relevant person and their RPR access a review or an appeal to the Court of Protection
provide support with a review or an application to Court of Protection.
5. OTHER RESPONSIBILITIES
5.1. The DoLS Administration Team will:
i. Request the relevant documentation from DoLS assessors in accordance with the DoLS regulations and maintain records of this information including when this information is due for renewal.
ii. Maintain records of all applications for DoL and all activity related to the application and
authorisation (or otherwise) iii. Inform Managing Authorities of their duties and keep them informed of key updates/developments. iv. Liaise with DoLS assessors and other staff to keep them informed of key updates/developments. vi. Maintain and update as required, information about the DoLS and local procedures.
5.2. Social Work teams will log DoLS activity and documentation in line with the agreed processes.
5.3. Data Protection 5.3.1. Personal information is held by the DoLS team in accordance with the DoLS legislation.
5.3.2. Stockton-on-Tees Borough Council’s privacy notice can be found here. This has been updated
following the changes to UK data privacy law and the introduction of the General Data Protection Regulation (GDPR) which came into force on 25th May 2018.
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SECTION D: ASSESSMENTS PROCEDURE FOR DEPRIVATION OF LIBERTY
1. HOW APPLICATIONS FOR DEPRIVATION OF LIBERTY ARE ASSESSED
1.1. All urgent authorisations of DoL and requests for standard authorisation of DoL will be assessed in
accordance with the MCA DoLS Code of Practice, and using the agreed standard DoLS forms. The
following assessments will be completed:
DoLS Assessment Purpose DoLSForm
3
DoLS Form
4
Age assessment
to confirm that the person is aged 18 or over
No Refusals assessment to determine whether the person has made an Advance Decisions to refuse treatment.
Best Interests assessment to determine whether the Deprivation of Liberty is in the person’s best interests.
Mental Capacity assessment to determine that the person lacks the capacity to consent to the care and treatment being delivered
Mental Health assessment to determine that the person is suffering from a mental disorder, as defined in the MHA 1983 (2015) Code of Practice
Eligibility assessment to determine the relevant person’s status, or potential status, under the MHA 1983.
2. BEST INTERESTS ASSESSMENTS
2.1. DoLS Best Interests Assessors will be provided with a Stockton Borough Council DoLS BIA Induction
and Information Pack, which provides information about processes as well as guidance on completing
assessments. The information pack should be taken on each assessment visit, for key information to
be shared with the relevant person, and their/family friends where appropriate.
2.2. Best Interests Assessments will be completed using the agreed DoLS Form 3 (incorporating
assessments of Age, Mental Capacity, No Refusals, Best Interests Assessments and Selection of
Representative), by suitably qualified BIAs. There is no expectation on Best Interests Assessors to
complete the Mental Capacity assessment part of the form. However, the BIA may start the Best
Interests Assessment before any Mental Health Assessments are completed, and conclude that the
relevant person has the capacity to consent to the care and treatment provided. In this case, the
assessment process should stop, and the BIA should complete DoLS Form 3a (No Deprivation of
Liberty).
2.3. Best Interests Assessors employed by Stockton-on-Tees cannot undertake assessments for people
resident in in-house services. In these circumstances, the DoLS Team will commission the BIA
Assessment from an independent BIA.
2.4. The BIA must not be a relative of the person being assessed, nor of a person with a financial interest in
the person’s care. For this purpose, a relative is:
a) Spouse, ex-spouse, civil partner or ex-civil partner. b) Person living with the relevant person as if they were a spouse i.e. a civil partner. c) Parent or child. d) Brother or sister. e) Child of a person falling within definitions a, b or d. f) Grandparent or grandchild.
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g) Grandparent-in-law or grandchild-in-law. h) An aunt or uncle. i) Sister-in-law or brother-in-law. j) Son-in-law or daughter-in-law. k) First cousin. l) Half-brother or half- sister.
2.5. Use of Equivalent Assessments
Equivalent assessments may be used provided they have been completed within the previous twelve
months, and they are relevant. Where equivalent assessments have already been carried out it is
acceptable for the BIA to refer to these assessments but they must make sure these assessments are
recent (completed within the previous twelve months) and relevant. The use of any equivalent
assessment used must be recorded:
within DoLS Form 3 (Assessments), along with the date of the assessment visit (which must be
before the end of the twelve-month period), and
DoLS Form 5 or DoLS Form 6.
2.6. Selection of Relevant Person’s Representative
2.6.1. The BIA should establish if the relevant person has capacity to select their own RPR and then invite
them to do so. If the relevant person has capacity and selects an eligible person, the BIA must
recommend that person to the Supervisory Body for appointment to the role.
2.6.2. If the relevant person lacks capacity and there is a donee or deputy with the appropriate authority, the donee or deputy can select the person to be recommended as RPR. If the person has a written advance statement, indicating their preference, these instructions should be followed wherever possible.
2.6.3. It is the BIA’s responsibility to confirm whether any RPR proposed by the relevant person, a donee or deputy, is eligible before making a recommendation to the Supervisory Body. If the BIA decides that a proposed RPR is not eligible, they must advise the person who made the selection, and invite them to make a further selection.
2.6.4. It should not be assumed that the person selected as RPR should support the Deprivation of Liberty, and a person should not be excluded from fulfilling the RPR role on the grounds that they might challenge the authorisation.
2.6.5. The recommendation of RPR must be recorded on DoLS Form 3 (BIA Assessment), ready for
authorisation by Stockton-On-Tees Borough Council DoLS Signatories
2.6.6. Wherever possible, the BIA will obtain the recommended RPR’s signature on the Appointment of RPR Form prior to authorisation to expedite the appointment to the role. Where it has not been possible to obtain this signature, the Appointment of RPR Form will be sent to the care home for the signature to be obtained and returned within 5 weeks. For respite and hospital cases where the signature has not already been obtained, this will be requested at the point of sending a copy of the decision record and assessments.
2.6.7. If the BIA is unable to recommend anybody to be a RPR, they must notify SBC DoLS Team so that a paid RPR can be appointed.
2.6.8. When selecting a representative, the BIA or Supervisory Body should pay particular attention to the communication and cultural needs of the relevant person.
2.6.9. The name of the recommended RPR will be included on the DoLS Form 5 (authorisation decision), and
this will be sent to interested persons. A letter of confirmation of appointment will be sent by the DoLS Team to the appointed RPR on receipt of a signature on Form 5.
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2.6.10. Completed assessments must be submitted by 12 noon on the specified authorisation signing date.
3. MENTAL HEALTH ASSESSMENTS
3.1. Mental Health Assessments will be completed using DoLS Form 4 (Assessments), by suitably qualified
Independent Mental Health Assessors. Independent MHAs must have a current and valid registration
on the section 12 (2) Mental Health Act Register of approved practitioners.
3.2. Completed assessments must be submitted by on the specified deadline date (which is one day before
the authorisation signing date).
4. COLLABORATION/CO-OPERATION
4.1. Wherever possible, the Best Interests Assessor and Mental Health Assessor will conduct assessments
in tandem in order to share their information and conclusions. Where this is not possible, it will be
necessary for the Best Interests Assessor and Mental Health Assessor to discuss the assessments and
to record other relevant information.
5. PROOF OF IDENTIFICATION
5.1. DoLS Assessors will carry identification with them and show this to the Managing Authority at the time of the visit.
5.2. DoLS Mental Health Assessors and independent DoLS Best Interests Assessors will be provided with a signed Letter of Authorisation by Stockton Borough Council. A copy of this letter should be taken on each assessment visit and shown to the Managing Authority at the time of the visit.
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SECTION E: REVIEWS
1. REVIEW OF AN AUTHORISATION OF DEPRIVATION OF LIBERTY
1.1. A DoL authorisation can be reviewed at any time throughout the period of authorisation, and the review
may be requested by any interested person. A request for a review must be completed using DoLS
Form 10 (Review of Current Authorisation). The grounds for requesting a review are that:
i. The person no longer meets one of the six requirements
ii. The reason why the person meets one of the requirements is different
iii. There has been a change in the person’s circumstances and the conditions
attached to the standard authorisation need to be changed.
1.2. Managing Authorities must send the completed DoLS Form 10 securely to the DoLS Team, as set out in
Section B, paragraph 1.5. of this DoLS policy and procedure document.
2. SOCIAL WORK REVIEW OF PEOPLE SUBJECT TO A DEPRIVATION OF LIBERTY SAFEGUARDS
AUTHORISATION
2.1. Annual care-management reviews will take place in accordance with Stockton Borough Council’s Care
Management Handbook. For each person subject to a DoLS authorisation, the care-management review
will take place approximately eight weeks before the DoLS authorisation end date. These reviews may
take place more frequently where required. Where there is no active care management involvement, a
care manager will be allocated to the relevant person as soon as possible. The care manager will be
responsible for monitoring the care, support and placement, liaising with the Relevant Person’s
Representative during the authorisation period when required.
2.2. The Care Manager will give sufficient notice of the scheduled review meetings to enable interested
persons to attend where possible, or for interested persons to contribute if they are unable to attend. A
record of the outcome of the care management review meeting, including any updated care and support
plans, will be shared with all interested persons following the meeting.
2.3. The Care Manager will ensure that the client is kept central to proceedings. Any Best Interests Decisions
regarding the DoLS authorisation must consider information about the relevant person’s wishes.
2.4. Where it is considered by the Care Manager that there has been a change in the relevant person’s
capacity to consent to the care and treatment being provided, the Care Manager will advise the managing
authority to request a review using DoLS Form 10 (Review). The Care Manager must continue to liaise
with the managing authority until the review process is complete.
2.5. Where it is considered by the Care Manager that a further Standard Authorisation will be required, this
information will be shared with the relevant person, interested persons and the Managing Authority. The
Managing Authority should be prompted to submit DoLS Form 2 – Request for Further Standard
Authorisation to the DoLS Team.
2.6. At the end of an authorisation period, where there is no further standard authorisation in place but social
care support and or/services are required, the person will be transferred to Stockton on Tees Borough
council’s review team. In these circumstances where no further social care support and or/services are
required, the case will be closed.
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SECTION F: CHALLENGES/COURT OF PROTECTION
1. CHALLENGES TO AN AUTHORISATION OF DEPRIVATION OF LIBERTY
1.1. Stockton-On-Tees Borough Council will fulfil its duty to explain to the relevant person, their
representatives, and families and close friends how to challenge an authorisation of Deprivation of Liberty.
This could include standard verbal and printed information provided by the Best Interests Assessors at
the start of the process, by Care Management during the period of authorisation and general information
provided on Stockton-On-Tees Borough Council’s website.
1.2. Section 21A of the Mental Capacity Act 2005 (MCA) gives the Court of Protection jurisdiction to determine
a number of matters which relate to Deprivation of Liberty Safeguards standard or urgent authorisations
under Schedule A1 of the Mental Capacity Act (2005). The scope of s21A is broad and goes beyond
simply deciding whether or not an authorisation should remain in place. Appeals under s21A can involve
complex issues of liability as well as bringing in broader best interests and welfare issues which still relate
to the issue of the reason why the person was detained. For example, P wants to return to his or her own
home, but the statutory body wants P to go and live in residential care.
1.3. The Court may determine where a Standard Authorisation has been given whether the relevant person
meets whether the relevant person meets one or more of the qualifying requirements:
a. the period during which the standard authorisation is to be in force b. the purpose for which the standard authorisation is given; c. the conditions subject to which the standard authorisation is given
If the court determines any question in relation to a-c above, the court may make an order to vary or terminate the standard authorisation, or directing the supervisory body to vary or terminate the standard authorisation.
1.4. Where an urgent authorisation has been given, the court may determine
a. whether the urgent authorisation should have been given; b. the period during which the urgent authorisation is to be in force; c. the purpose for which the urgent authorisation is given.
1.5. Anyone connected with the person deprived of their liberty can challenge an Authorisation by bringing
proceedings under Section 21A of the Mental Capacity Act 2005 in the Court of Protection. In order to
benefit from non means tested legal aid the case must be brought by the individual concerned or by
their Relevant Person's Representative.
1.6. Those with automatic rights to access the Court of Protection are:
a person who is considered to lack capacity in relation to a specific decision or action
the donor of Lasting Power of Attorney to who an application relates or their donee
a deputy who has been appointed by the Court to act for the person concerned
a person named in an existing Court Order to which an application relates
the person appointed by Stockton-On-Tees Borough Council as the Relevant Person’s Representative
All others need to seek permission from the Court before making an application by completing the relevant application form.
28
Legal Aid is available for advice on representation before the Court of Protection for people deemed to lack capacity in relation to a specific decision or action.
2. THE PROCESS FOR SECTION 21A CHALLENGES
2.1. The BIA will note any objection (or potential objection) within DoLS Form 3, and this information will
be included in DoLS Form 5.
2.2. Where an objection (or potential objection) has been noted, this information will be included in the
decision email to the managing authority and relevant Social Work team.
2.3. The DoLS Team will send DoLS Form 14 (COP Challenge Reply Form) to the appointed RPR, to be
returned to the DoLS Team within 6 weeks. Where this is not returned within 6 weeks, a follow-up
letter will be sent to then RPR, and an email sent to the relevant person’s Social Worker.
2.4. Where the returned information confirms that the person is objecting, the DoLS Team will notify
Stockton-Borough-Council’s legal department, so that they can liaise with the nominated solicitor.
2.5. Where the returned information states that the person is not objecting, the DoLS Team will request
the relevant person’s Social Worker visit the relevant person to confirm whether or not this is the
case. Where the relevant person is not active to a Social Worker, a Stockton-Borough-Council BIA
will visit the relevant person to determine the presence or otherwise of an objection. The Social
Worker’s/BIA’s assessment of this will be recorded on DoLS Form 14.
2.6. Where cases are progressed to the Court of Protection, the DoLS Team will provide updates on
progress to the Stockton-Borough council legal team, managing authority and Social Work Team.
3. LINKS TO FURTHER INFORMATION
Mental Capacity Act 2005 DoL Safeguards: Code of Practice to supplement the main Mental
Capacity Act 2005 Code of Practice. Section 10 (p98)
http://webarchive.nationalarchives.gov.uk/+/www.dh.gov.uk/en/SocialCare/Deliveringadultsocialc
are/MentalCapacity/MentalCapacityActDeprivationofLibertySafeguards/index.htm
Mental Capacity Act 2005 Code of Practice (‘What are the best ways to settle disagreements and disputes about issues covered in the MCA 2005’) https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
Office of the Public Guardian http://www.publicguardian.gov.uk/about/court-of-protection.htm
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SECTION G: ORDINARY RESIDENCY/OUT OF AREA PLACEMENTS
1. OUT OF AREA PLACEMENTS
1.1. Where Stockton-On-Tees Borough Council is responsible for placements in care homes in another Local
Authority, Stockton-On-Tees Borough Council remains the Supervisory Body for the purposes of DoLS.
2. PEOPLE WHO FUND THEIR OWN CARE
2.2. Where an individual makes a capacitated decision to go into a care home that is located outside of their
existing local authority without any local authority having taken responsibility for the arrangements, the
local authority in which the care home is located will be the relevant Supervisory Body for the purposes
of the DoLS.
3. PEOPLE OF NO FIXED ABODE
3.1. In circumstances where an individual has no fixed abode, the local authority where they present
themselves will normally accept responsibility for provision of social services and will be the relevant
Supervisory Body for the purposes of any Deprivation of Liberty requests.
4. WHERE THERE IS A DISPUTE
4.1. Any unresolved questions about the ordinary residence of the relevant person will be handled by the
Secretary of State. Until a decision is made, the host Local Authority must act as the supervisory body.
Disputes must not cause delays in the start of the assessment process in relation to applications for
Deprivation of Liberty authorisations.
When the decision is made, the local authority of ordinary residence must assume responsibility as the
Supervisory Body.
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5. OVERVIEW OF RESPONSIBLE SUPERVISORY BODY
Resident in a Stockton-On-Tees Care Home Supervisory Body
Where the person was a Stockton-On-Tees resident prior to the care home admission
Stockton-On-Tees Borough Council
If the person wasn’t a Stockton-On-Tees resident prior to the admission, the person had made a decision to live in the care home when they had the capacity to make that decision OR where that decision has been made by a donee of Lasting Power of Attorney for finances and health & welfare.
Stockton-on-Tees Borough Council
Where Stockton-on Tees Borough Council have made the placement
Stockton-on-Tees Borough Council
Where Stockton-on-Tees CCG has made the placement and Stockton-on-Tees Borough Council funded the client prior to this placement.
Stockton-on-Tees Borough Council
Where another CCG has made the placement and Stockton -on-Tees Borough Council funded the client prior to this placement.
Stockton-On-Tees Borough Council
Where another Local Authority or CCG has made the placement, and there was no immediate prior funding from Stockton.
The local authority responsible for that placement.
Where a person funds their own care, without arrangements having been made by Stockton-on-Tees Borough Council
Stockton-on-Tees Borough Council
Resident in an Out of Area Care Home Supervisory Body
Where the person had made a decision to live in the care home when they had the capacity to make that decision OR where that decision has been made by a donee of Lasting Power of Attorney for finances and health & welfare.
The local authority responsible for that care home
Where Stockton-on-Tees Borough Council has made the placement
Stockton-on-Tees Borough Council
Where Stockton-on-Tees CCG has made the placement. Stockton-on-Tees Borough Council
Where the person is CCG-funded, but Stockton-on-Tees Borough Council was responsible for funding prior to CCG funding coming into effect.
Stockton-on-Tees Borough Council
Where a person funds their own care. The local authority responsible for that care home
31
Process where there is no Social Care record for the client
Client not known to services/no record of client on Care
Director/Ordinary Residency not clear
DoLS Admin Team contact Managing Authority for further
clarification
Is the client self-funding?Is the client in a Stockton
care home?Supervisory Body is Stockton
Council
Supervisory Body is the Local Authority responsible for the
out-of-area care home
Is the client Continuing Health Care?
Was SBC responsible for the client before this placement?
Supervisory Body is Stockton Council
Supervisory Body is the Local Authority responsible for the placement or the out-of-area
care home
Managing Authority to advise who has funding repsonsibility &
submit application to relevant Supervisory Body. If unclear,
DoLS Admin to contact SBC legal services for guidance.
YES YES
NO
NO NO
NO
YES YES
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SECTION H: UNAUTHORISED DEPRIVATION OF LIBERTY
1. CONCERNS ABOUT UNAUTHORISED DEPRIVATION OF LIBERTY
1.1. Any individual who has concerns that an individual may be being deprived of their liberty without the
Managing Authority having applied for authorisation, should draw this to the attention of the Managing
Authority by using Standard Letter 1. In the first instance, the Managing Authority should be asked to
apply for a standard authorisation if it wishes to continue with the care regime, or to change the care
regime immediately. The Managing authority must respond within a reasonable time (normally within 24
hours).
1.2. Wherever possible, the Managing Authority should endeavour to resolve the matter informally with the
concerned person. This could be through making adjustments to the care arrangements, for example, to
remove the concerns that a Deprivation of Liberty may be occurring. If the Managing Authority is unable
to resolve the issue quickly, they should submit a request for a standard authorisation to Stockton-on-
Tees Borough Council (or other appropriate Supervisory Body).
1.3. If the concerned person has raised the matter with the managing authority and the managing authority
does not apply for an authorisation within a reasonable period the concerned person may ask the
supervisory body to decide whether there is an unauthorised Deprivation of Liberty. They must inform the
supervisory body of the name of the relevant person and the name of the hospital/care home and explain
why they think the relevant person is being deprived of their liberty using standard Letter 2.
2. RESPONSIBILITIES OF THE SUPERVISORY BODY WHERE THERE ARE CONCERNS ABOUT UN-
AUTHORISED DEPRIVATION OF LIBERTY
2.1. In these circumstances, Stockton-on-Tees Borough Council must appoint a Best Interests Assessor to
consider whether the person is deprived of their liberty, except where it appears to Stockton-on-Tees
Borough Council that:
the person is not being deprived of their liberty or where a very recent assessment has been
carried out and repeated requests are received, or
The question of whether or not there is an unauthorised Deprivation of Liberty has already been
decided, and since that decision, there has been no change of circumstances that would merit the
question being considered again.
2.2. Stockton-on-Tees Borough Council should record the reasons for its decision using DoLS Form 5 or DoLS
Form 6.
2.3. If a person raises concerns directly with Stockton-on-Tees Borough Council, a preliminary assessment
should be arranged immediately to determine whether or not a Deprivation of Liberty is occurring.
Stockton-on-Tees Borough Council should then inform the managing authority to ask them to request a
standard authorisation in respect of relevant person. Stockton-on-Tees Borough Council should agree
with the managing authority what is a reasonable period within which a standard authorisation should be
requested (unless the managing authority is able to resolve the matter with the concerned person
informally). If the managing authority does not resolve the matter with the concerned person or submit a
request for authorisation within the agreed period the supervisory body should follow the process
described in 2.1 to assess whether an unlawful deprivation is occurring.
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2.4. Where the concerned person chooses to deal directly with the Managing Authority, Stockton-on-Tees
Borough Council should closely monitor the situation to ensure that there is no unlawful Deprivation of
Liberty occurring without proper action being taken.
2.5. Stockton-on-Tees Borough Council must arrange for a Best Interests Assessor to complete an
assessment as to whether a Deprivation of Liberty is occurring, within seven days.
2.6. The BIA must consult with the Managing Authority, examine any relevant needs assessments and care
plans to consider whether they constitute a Deprivation of Liberty. They should also speak to the person
who raised the concern about why they believe the relevant person is being deprived of their liberty, and
consult as far as is possible, with the relevant person’s family and friends. Where there is nobody to
consult, the BIA must notify Stockton-on-Tees Borough Council’s DoLS Team so that an IMCA can be
instructed.
3. OUTCOME OF THE ASSESSMENT
3.1. The three possible outcomes of the assessment are:
The person is not being deprived of their liberty.
The person is being lawfully deprived of their liberty because authorisation exists (unlikely since
the supervisory body should already be aware of an existing authorisation). Or:
The person is being unlawfully deprived of their liberty.
3.2. The outcome as to whether or not a Deprivation of Liberty is occurring will be recorded on DoLS Form 3
(Age, Mental Capacity, No Refusals, Best Interests Assessments and Selection of Representative) or
DoLS Form 3a (Best Interests Assessments - No Deprivation of Liberty). Stockton-on-Tees Borough
Council must notify the following people of the outcome of the assessment:
The concerned person who made the request.
The relevant person.
The Managing Authority.
Any IMCA involved.
3.3. If the outcome is that an unauthorised deprivation is occurring then the full assessment process should
be completed, unless the managing authority changes the care regime so that it is clear that there is no
longer a Deprivation of Liberty occurring.
3.4. If the Managing Authority considers there is a need to continue the deprivation and it is so urgent that the
care regime should continue whilst the assessments are carried out it must give itself an urgent
authorisation and seek a standard authorisation.
3.5. If the concerned person is unhappy about the outcome they may apply to the Court of Protection to hear
their case.
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4. LINKS TO FURTHER INFORMATION
Mental Capacity Act 2005 http://www.legislation.gov.uk/ukpga/2005/9/contents
Mental Capacity Act 2005 Code of Practice
https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
Mental Capacity Act 2005 Deprivation of Liberty Safeguards Code of Practice
www.gov.uk or
http://webarchive.nationalarchives.gov.uk/+/www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/
MentalCapacity/MentalCapacityActDeprivationofLibertySafeguards/index.htm
Care Act 2014 http://www.legislation.gov.uk/ukpga/2014/23/contents/enacted
Judgment of the Supreme Court P v Cheshire West and Chester Council and another P and Q v
Surrey County Council, and other recent relevant case law: 39 Essex Chambers Mental Capacity
Law Newsletter www.39essex.com
Department of Health website www.gov.uk
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SECTION I: DEPRIVATION OF LIBERTY IN COMMUNITY SETTINGS 1. BACKGROUND
1.1. Sometimes people living in supported living, shared lives accommodation, people living in their own homes with support, or people attending day services will receive care which means that they are being or may be deprived of their liberty. For some people, this will be necessary to ensure that they are safely cared for in the community and receive the care and attention they require. In these cases, where the state is involved (for example where the Local Authority has arranged or pays for some or all of the care) this deprivation must be authorised by the Court of Protection, and a separate process to that of the DoLS must therefore be followed.
1.2. In the majority of cases the Re X (streamlined) procedure will be followed. This means that an oral hearing will not be required to authorise a deprivation of liberty. This procedure will not apply if there is:
a. any contest, whether by the person or anyone else (in relation to proof of age, evidence about “unsoundness” of mind, the nature of the care arrangements, evidence of lack of capacity and best interests and how the arrangements are imputable to the State)
b. any concerns arising out of information supplied to the Court; c. any objection by the person
2. INFORMATION TO BE COMPLETED 3.1. Social care professionals will be expected to complete a capacity assessment with the person to establish
whether or not they have capacity to consent to their accommodation and care needs. Where the person is deemed to lack capacity, completion of the process will be necessary.
3.2. Social Workers are requested to complete an initial information template to support Legal Services in
opening case files and preparing the necessary documentation. This template has been provided to operational teams.
3.3. Information must be completed using the court’s COPDOL11/COPDOL24 forms.
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Form/Section Details Responsibility for completion
COPDOL11
Annex A: Evidence in support of an application to authorise deprivation of liberty
i. Assessment of capacity
Social Care Professional
ii. Mental Health Assessment – Unsoundness of mind
Refers to P suffering from an impairment in the functioning in the mind or brain
Must be provided by a medical practitioner
iii. The person’s circumstances
Social Care Professional
iv. The care or support plan
Social Care Professional/Legal Services
v. Deprivation of liberty of P
Circumstances giving rise to the deprivation of liberty
Social Care Professional/Legal Services
Annex B: Consultation with people with an interest in an application to authorise a deprivation of liberty
Includes identification of any person who is willing to act as a Rule 1.2. representative
Annex C: Consultation with P in support of an application to authorise a deprivation of liberty
Includes P’s present/past wishes, feelings or beliefs and values that must be taken into account before a deprivation of liberty can be authorised
COPDOL24
Statement Detailed information about the person’s circumstances
Social Worker
Witness Statement Relationship to the person Help provided Appointment of 1.2 Representative Confirmation that agreeable to not seeing the Judge and happy for order to made for 12 months
Litigation Friend
3. RULE 1.2 REPRESENTATIVE
6.1. The Rule 1.2 Representative (formerly Rule 3A Representative) was introduced by the RE X procedure
and is an attempt to reduce the requirement of formal representation via a litigation friend. The court can
appoint a Rule 1.2 Representative whose function is to give a “voice” to P by providing the court with
information. This representative may be a friend or family member, an Independent Mental Capacity
Advocate (IMCA), an advocate appointed under the Care Act 2014, or anyone with relevant knowledge.
Social Workers are asked to discuss this role during their consultation with interested people as part of
the process.
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4. MANAGEMENT OF COMMUNITY DOL CASES
The Community DoL Team will progress cases in review. Those cases open to the operational teams
team will be progressed by the active worker. The management of Community DoL cases in the
operational teams is detailed in Figure 1 below.
Figure 1
Client in long-term team?
Community DoL identified
Worker completes Initial information form (send to
Legal Services)Review Worker completes
where client in review
Communication with Legal Services as required
Complete court documents (6 week timescale to
complete)
Allocated worker provides person and
family with Community DoL information, and works with client &
family to identify least-restrictive option
Worker provides person and family with Community DoL
information
YES
NO
DoL still occurring @ 6
week point?
YES
NO
Community DoL Process Ends
Referral to long-term team, with completed initial information & notify Legal Services/
Where active to OT, OT worker to retain case and complete Community DoL process
Short-term team worker refers to Service
Manager, for allocation to appropriate worker
5. LINKS TO FURTHER INFORMATION
Mental Capacity Act 2005 http://www.legislation.gov.uk/ukpga/2005/9/contents
Mental Capacity Act 2005 Code of Practice
https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
Care Act 2014 http://www.legislation.gov.uk/ukpga/2014/23/contents/enacted
Judgment of the Supreme Court P v Cheshire West and Chester Council and another P and Q
v Surrey County Council, and other recent relevant case law: 39 Essex Chambers Mental
Capacity Law Newsletter www.39essex.com
Department of Health website www.gov.uk
Stockton-on-Tees Borough Council’s Community DoL information sheet