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The Deprivation of Liberty Safeguards can only apply to people who reside in care homes or those in hospital, the care home or hospital is known as the Managing Authority (MA).
Sometimes, the Managing Authority may think it is necessary to take away some of a patient’s freedom to provide them with the care they need and keep them safe – this is called a ‘deprivation of liberty.’ This may include when there are plans to move a person to a care home or hospital.
If a Managing Authority thinks it needs to deprive someone of their liberty, they must seek authorisation up to 28 days before they plan to commence the deprivation of liberty.
‘The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.’
Liberty can only be taken away in very specific situations as specified under the Mental Capacity Act.
For example, Mary was admitted to hospital for physical treatment for recurrent bladder infections. Mary did not understand why she was in hospital and wanted to leave. Mary was under continuous supervision as staff monitored/knew Mary’s whereabouts 24 hours a day causing Mary to become agitated regularly. Mary asked to go home, her request was declined as the ward staff felt she lacked capacity in relation to her stay in hospital. The hospital requested a standard authorisation to deprive Mary of her liberty in her best interest so she could stay in hospital until her treatment had finished.
As above, DoLS can only be used if a person is in hospital or a care home. However, if a person is living in another setting, such as supported living or their own home, it is still possible to deprive the person of their liberty in their best interests, via an application to the Court of Protection.
If a person is in hospital they should not be subject to the Deprivation of Liberty Safeguards if they meet the criteria for detention under the Mental Health Act.
The Deprivation of Liberty Safeguards should not be used if the main reason is to restrict contact with individuals who may cause the person harm. If it is believed to be in a person’s best interests to limit contact an application should be made to the Court of Protection.
If there is a dispute about where a person should stay, an authorisation does not resolve the dispute. The Code of Practice of the Mental Capacity Act says that unresolved disputes about residence, including the person themselves disagreeing, should be referred to the Court of Protection.
Our specialist Independent Mental Capacity Advocates (IMCAs) work with people who are being deprived of their liberty. Our IMCA’s ascertain the individuals wishes and feelings and ensure they are considered and heard throughout the process. The IMCA will represent and challenge any unnecessary or over-restrictive practices to safeguard their rights.
We work entirely independently from the hospitals, care homes and provider of the services.
Dorothy* is an 82 year old lady suffering from Dementia and living in a care home, she has stated numerous times that she wants to go home. Dorothy’s daughter is acting as her Relevant Person Representative.
Find out more about the role of an IMCA in relation to DoLS by contacting us today.
Call us at Advocacy Focus on: 0300 323 0965 or email: admin@advocacyfocus.org.uk
