At times, some adults over the age of 18 years will need to be deprived of their liberty in their best interests, to protect them from harm.
Deprivation of Liberty Safeguards (DOLS) is an important protection for people who:
- are at risk of being deprived of their liberty in a hospital or a Care Quality Commission (CQC) registered care home (these are known as ‘Managing Authorities’)
- lack the capacity to consent to the arrangements
- are not detained under the Mental Health Act 1983.
A person is likely to be deprived of their liberty when they:
- are not free to leave the care home or hospital
- are being subject to continuous supervision and control
- lack the capacity to consent to these arrangements.
The managing authority is legally obliged to request a deprivation of liberty safeguards (DOLS) authorisation from the supervisory body, otherwise, it might be the case that the person is being deprived of their liberty unlawfully.
Hammersmith & Fulham Council is the supervisory body for all people who may be deprived of their liberty in a hospital or care home, lack capacity to consent to this and are 'ordinarily resident' in Hammersmith & Fulham.
This means that we are also responsible for people placed in care homes outside of Hammersmith & Fulham and for people who are ordinarily resident in Hammersmith & Fulham but become admitted to hospitals elsewhere.
We are not responsible for people who have been placed in care homes in Hammersmith &d Fulham by other local authorities, nor for people who ordinarily live elsewhere but are admitted to hospitals in Hammersmith & Fulham.
Persons who are deprived of their liberty in other settings, such as supported living or their own homes cannot have this authorised through the DOLS process.
Registered homes and hospitals are 'managing authorities' for DOLS and they have the responsibility for preventing unnecessary deprivations of liberty and recognising when a deprivation of liberty is occurring or is likely to occur.
In cases of urgent necessity, care homes and hospitals can grant themselves authorisation for up to 7 days (extendable to 14 days in certain circumstances) whilst they await the necessary assessments to be completed by the supervisory body.
Whenever a care home or hospital grants itself an urgent authorisation it must also make a request to the supervisory body for a DOLS standard authorisation.
What constitutes a deprivation of liberty?
There is no simple definition of deprivation of liberty that can be applied in every case and it is probably that no single factor will, in itself determine whether the overall set of steps being taken in relation to the relevant person amounts to a deprivation of liberty.
The Supreme Court Judgment (P v Chester and Cheshire West and P&Q v Surrey County Council) was handed down on 19 March 2014 and established an ‘acid test’ for deciding whether or not someone was being deprived of their liberty.
The court held that the factors for deciding when a person lacking capacity is being deprived of their liberty are that:
- the person is subject to continuous supervision and control
- the person is not free to leave
- the person lacks capacity to consent to their care arrangements
- this is imputable to the state.
The Code of Practice on the Deprivation of Liberty Safeguards contains further details, but, whether someone is being deprived of their liberty or not will be a matter of judgment and interpretation by care staff and ultimately by the courts.
Make a DOLS application
All referrals and enquiries should be made to James South, Deprivation of Liberty Safeguards Manager and Liberty Protection Safeguards Lead.
You can call him on 020 8753 3211 or email him at firstname.lastname@example.org
A revised full set of the DOLS forms are available on GOV.UK. Please note - ONLY digital applications will be accepted and must be sent securely.
What is the role of the relevant person's representative?
Once a standard deprivation of liberty authorisation has been granted, the supervisory body must appoint someone to represent the relevant person as soon as possible. This person is called the 'relevant person's representative'.
Once appointed, a relevant person's representative should:
- maintain contact with the relevant person
- represent and support the relevant person in all matters relating to the deprivation of liberty safeguards, including, if appropriate, triggering a review, using an organisation's complaints procedure on the person's behalf or making an application to the Court of Protection.
To be eligible to be the relevant person's representative, a person must be:
- 18 years of age or over
- able to keep in contact with the relevant person
- willing to be appointed.
The person must not be:
- financially interested in the relevant person's managing authority (eg a partner, director, other office-holder or major shareholder of the managing authority)
- a relative of a person who is financially interested in the relevant person's managing authority
- employed by, or providing services to, the care home in which the relevant person is living
- employed by the hospital in a role that is, or could be, related to the treatment or care of the relevant person
- employed to work in the relevant person's supervisory body in a role that is, or could be, related to the relevant person's case.
The appointment of the relevant person's representative is in addition to, and does not affect, any appointment of donee or deputy. There is no presumption that the relevant person's representative should be the same as the person who is their nearest relative for the purposes of the Mental Health Act 1983.
However, a nearest relative, donee or deputy could be appointed simultaneously as the relevant person's representative provided they meet the criteria above.
The supervisory body must write to the person concerned inviting them to be appointed as such. If the person is willing to be appointed, the supervisory body will formally appoint them.