Deprivation of Liberty Safeguards

The number of people living with Alzheimer’s who are subject to deprivation of liberty safeguards (DoLS) is on the increase. DoLS are intended to ensure that residents in care homes and hospitals are protected in a way that does not deprive them of their liberty (if a person lives in supported living or their own home then it is possible to deprive them of their liberty in their best interests, but this must be done by applying directly to the Court of Protection). Effectively, DoLS authorise a deprivation of liberty when it is necessary to do so for a patient or resident who lacks capacity to consent to care or treatment in order to keep them safe from harm.

It has recently been reported that DoLS are linked to delays in families being able to bury their loved ones when they have died in a care home. This is because regulations require state inquests into such deaths, even when the cause of death is fairly clear – the deceased who was subject to the safeguards is considered to have died ‘in state detention’ thus an inquest is needed and the release of the body is delayed.

The Independent on 28th May 2015 interviewed a relative of someone who had been subject to the safeguards and who was forced to wait for 2 months before being able to bury the deceased. That relative stated “who actually benefits from these safeguards? It’s a box ticking exercise and I’m just so glad it’s finally over”.

There has been a dramatic rise in DoLS applications over the past year – The Independent quotes that 113,000 applications were made and that 36% of these were granted. That same article also includes a quote from George McNamara, Alzheimer’s Society, who states “DoLS are important for people with dementia to make sure they are not wrongly deprived of liberty but the current system is complicated and there is lack of awareness about the process”. I agree entirely with this statement and hope that this post will bolster people’s understanding of DoLS and their beneficial uses.

Deprivation of Liberty Safeguards are part of the Mental Capacity Act 2005. A deprivation of liberty is described as occurring when ‘the person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements’.

For a person to have capacity, they must be able to : 1) understand information relevant to the decision they want to make 2) retain that information long enough to allow them to make a decision 3) weigh up that information to come to a decision 4) communicate that decision.

The ECtHR has clarified what may amount to a deprivation of liberty. Examples of such deprivation include: restraint so that someone may be admitted to hospital; medication given against the person’s will; staff making all decisions about a person; and staff restricting a person’s access to family and friends. The point is that, whilst doing these things does deprive someone of their liberty, it is done for the person’s own benefit – therefore a DoLS is something that legally authorises the deprivation of liberty. If the examples above took place without a DoLS in place, then the person’s human rights would have been breached. Thus, under the MCA restraints and restrictions are allowed to be used when in a person’s best interests, but DoLS are needed if this restriction and restraint amounts to a deprivation of liberty.

If a relative were in a care home/hospital, and you felt that they were being deprived of their liberty but there is no authorisation for such deprivation in place, then the first port of call would be the care home manager – always attempt to resolve things from the bottom and an agreement could be reached re more freedom for your relative. If the care home manager does not think that an authorisation is needed, then you would approach the local authority and ask them to investigate whether a deprivation of liberty has taken place.

It is against the law to deprive someone of their liberty without there being an authorisation in place.

The recent case of Re AJ [2015] clarified that a local authority, when it knows that a person will be entering a care facility on a permanent basis, should make an application to the court or carry out a DoLS assessment. Effectively, authorisation should be obtained before any deprivation of liberty occurs. If an authorisation has not been made prior to a person’s move into a care setting, then an urgent authorisation could be made by the care home/hospital manager when the person arrives, although Re AJ [2015] confirmed that such an authorisation should last for no more than seven days, save in exceptional circumstances, and that an application for standard authorisation ought to be made at the same time.

The assessment process for a standard authorisation involves at least two independent trained assessors – one mental health assessor and one best interest’s assessor. If the pair do not think that all of the conditions have been met then the deprivation of liberty will not be authorised. This procedure is intended to protect the patient or resident in question. Part of the assessment process is that family, friends and paid carers who know the person well be consulted so that they may give suggestions as to how the person may be supported without depriving them of their liberty.

Should the care home resident or hospital patient concerned have no family or friends, they can utilise the support of an IMCA (Independent Mental Capacity Advocate) during the assessment process.

Following authorisation, a Relevant Person’s Representative (RPR) should be appointed as soon as possible. It will tend to be a family member or friend who will fulfil this role but if no one will take on the role on an unpaid basis then the supervisory body will have to pay someone to be the person’s RPR. In such a case, it is likely that this will be an advocate. If the RPR is unpaid (which would be the case if it were a friend or family member) then both the person and the RPR are entitled to the support of an IMCA.

An authorisation for a deprivation of liberty is intended to last for the shortest time possible, with the maximum authorisation time being 12 months, during which time regular checks must be carried out to determine whether the authorisation is still needed. If the authorisation is no longer necessary, then it must be removed. The patient/resident and their RPR are able to challenge the deprivation of liberty in the Court of Protection at any time, and can also require the authorisation for the deprivation to be reviewed at any time. The review would determine whether the criteria to deprive the person of their liberty is still met and, if so, whether the conditions need to change.  The home or hospital should do all that it reasonably can to explain to a detained person and their family what their rights of appeal are.

Useful info on DoLS can be found at:

http://www.rcpsych.ac.uk/healthadvice/problemsdisorders/deprivationlibertysafeguards.aspx

http://www.scie.org.uk/publications/ataglance/ataglance43.asp

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