Cookie Consent by PrivacyPolicies.com Deprivation of Liberty Safeguards (DoLS) - What does this mean for your loved one?

Deprivation of Liberty Safeguards (DoLS) - What does this mean for your loved one?

Deprivation of Liberty Safeguards (DoLS) - What does this mean for your loved one?

The Mental Capacity Act (2005) includes the amendment Deprivation of Liberty Safeguards which was introduced in 2007. DoLS was designed to protect the rights of those that cannot leave care or hospital settings freely but lack the capacity to consent to this arrangement; if they have dementia for example. Your loved one may be under high levels of monitoring or other restrictive practices such as keypad secured exit doors or falls sensor equipment. Under these circumstances they are likely being deprived of their liberty, all be it for their best interests for reasons of safety. 

Care homes were relatively unaffected by the introduction of DoL’s until 2014 when a landmark case is known as ‘Cheshire West’ was ruled on by the supreme court.  Up until Cheshire West, if the care home placement was deemed as ‘usual’ for the circumstances, it was assumed to be in the person's best interests, therefore, they were not assessed for being deprived of their liberty.   

The Judge in the Cheshire West case ruled that liberty should mean the same for everybody regardless of their condition or disability.  The judgment clarified the ‘acid test’ as a benchmark to assess if a person is deprived of their liberty asking; are they under continuous supervision and control? And .. are they free to leave?

The ruling had huge implications for health and social care. Care home providers, where accommodating residents that lack capacity, found themselves in a position where they had no defence against an unlawful detention claim. This sent a surge of DoLS applications in the direction of local authorities, creating a backlog of assessments.

Some sources suggest that between 2015-2016 195,84 DoLS applications were made, compared with around 11,000 received annually from care homes and hospitals prior to the Cheshire West judgment.


The Assessment

If your loved one lacks the capacity to consent to living in the care home you have chosen, the care home should apply for a DoLS assessment, usually to the local authority.  An urgent DoLS authorisation can be granted by the care provider while waiting for the standard authorisation to be completed. 

The local authority will then instruct two professionals, the best interests (BI) assessor, and a suitably qualified doctor to conduct six assessments. The doctor will assess mental capacity and legal eligibility for a DoLS authorisation.

The BI assessor will establish if the care placement is a proportionate decision to make on behalf of your loved one balanced with the severity of harm that could be caused if the decision was not made. They will decide if this decision will result in the person being deprived of their liberty.  The BI assessor should involve your loved one as much as possible and speak with those closest to them such as friends and family.


DoLS authorisation granted.

If the 6 test process results in the DoLS authorisation being granted, this will be in place for up to 12 months and will have to be applied for again before it expires.

It will cover the reason for the deprivation of liberty, and it may include recommendations such as regular access to outdoor space. It does not cover any particular care or treatment, so essentially it just provides a legal framework to protect the care home. It will not affect the care and treatment your loved one receives which should be based on their needs regardless of the DoLS order. 

 

DoLS authorisation refused.

A DoLS authorisation will be refused if any of the criteria in the 6 assessments are not met.  This could be for a number of reasons such as the person is deemed to have the capacity or there are less restrictive options available to the person who lacks capacity.


DoLS Appeals

The person whose liberty is being deprived or their representative can challenge the decision by requesting a review in the Court of Protection.


Liberty Protection Safeguards (LPS)

Liberty Protection Safeguards (LPS) is an amendment to the Mental Capacity Act (2019) and is expected to replace DoLS by April 2022.  LPS has been designed to overhaul the DoLS system, streamlining the process.  The DoLS system will run alongside the LPS system for 12 months, which should ensure that original DoLS authorisations do not have to be replaced prior to their expiry dates. 

LPS will require 3 assessments instead of 6, and will utilise existing care plans where appropriate, rather than providing a new assessment in all cases. 

 

 

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