Deprivation of Liberty Safeguards
The Deprivation of Liberty Safeguards introduced a number of new terms to describe the people who may be subject to the safeguards and those representing and supporting them, as well as those involved in operating the Deprivation of Liberty Safeguard (DOLS) procedures. These terms are described below.
The relevant person
Both the Mental Capacity Act (MCA), as amended, and the Deprivation of Liberty Safeguards (DOLS) Code of Practice refer to the ‘relevant person’ to describe a person who is, or may become, deprived of their liberty. It can therefore be used for someone for whom a request for a DOLS authorisation has been, or is being made, as well as for someone who is already subject to a DOLS standard or urgent authorisation.
The managing authority
Describes the body, or sometimes the person, with management responsibility for the hospital or care home in which a person is, or may become, deprived of their liberty. The managing authority has management responsibility for the providers of care or treatment:
in the case of NHS hospitals, the NHS Trust, Foundation Trust or other authority that manages the hospital is the managing authority
in the case of care homes (homes providing accommodation, together with personal or nursing care) and independent (private) hospitals, the managing authority is the person registered under Part 2 of the Care Standards Act 2000 in respect of the relevant care home or hospital
whether a private nursing home is a care home or hospital depends on its registration – the managing authority is the person registered
The supervisory body
The supervisory body is responsible for dealing with requests from the managing authority for a standard authorisation to deprive someone of their liberty. The supervisory body is now the Local Authority. in which the person is ordinarily resident.
The supervisory body is also responsible for appointing assessors and commissioning the necessary statutory assessments, to enable it to decide whether to grant or refuse authorisation for deprivation of liberty.
The formal authorisation required to give lawful authority to deprive someone of their liberty in a care home or hospital for the purpose of giving care or treatment in their best interests. Two mechanisms are available:
Standard authorisation – given by the supervisory body, after completion of the statutory assessment process, which gives authority for deprivation of liberty for a period of up to 12 months
Urgent authorisation – given by a managing authority to allow a deprivation of liberty for up to seven days whilst a standard authorisation is being obtained. This can be extended for up to a further seven days by the supervisory body if there are exceptional reasons why it has not been possible to decide on a request for standard authorisation and it is essential that the detention continues
These are the professionals who carry out the assessments of the relevant person to see if the person satisfies the six qualifying requirements for a standard authorisation to deprive them of their liberty. The following assessments required are:
no refusals assessment
mental capacity assessment
mental health assessment
best interests assessment
The relevant person’s representative
The relevant person’s representative is an individual who is independent of the hospital or care home where the relevant person resides, who is appointed by the supervisory body to represent and support the relevant person while they are subject to a DOLS authorisation. Regulations set out who may be eligible for appointment as a representative. The Best Interests Assessor will recommend someone for appointment, usually a family member or friend, or the supervisory body may appoint a professional representative if there is no-one else eligible to act.
Independent Mental Capacity Advocate (IMCA)
The IMCA service was established by the Mental Capacity Act 2005 to provide independent advocates (IMCAs) to support and represent a person lacking capacity to make specific decisions, where the person has no family or friends, and no-one else to support them, other than paid carers or people providing care or treatment in a professional capacity. The supervisory body must instruct an IMCA to support and represent the relevant person during the assessment process for a standard authorisation, if the person has no family or friends, and there is no-one else, other than paid carers or professionals, for the Best Interests Assessor to consult when deciding whether it would be in the person’s best interests to be deprived of their liberty.
Court of Protection
The specialist court for all issues and disputes relating to people who lack capacity to make specific decisions. Both the relevant person and their representative have the right to apply to the Court of Protection to seek a variation or a termination of a DOLS authorisation.