Audio & Quick Read Summary

CQC We and I Statements

Theme 1 – Working with People: Assessing needs

We statement

We maximise the effectiveness of people’s care and treatment by assessing and reviewing their health, care, wellbeing and communication needs with them.

I statements

I have care and support that is coordinated, and everyone works well together and with me.

I have care and support that enables me to live as I want to, seeing me as a unique person with skills, strengths and goals.

Please note: The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019 and proposed a new system for protecting people aged 16 years and above who lack capacity to consent to care and treatment and who need to have their liberty deprived. However, in April 2023, the Department of Health and Social care announced that the LPS will not now be implemented before the next General Election (which must be held, by law, no later than 28 January 2025).

TRAFFORD LOCAL INFORMATION

Deprivation of Liberty – Request an authorisation or review (Trafford Council)

1. The Deprivation of Liberty Safeguards

A deprivation of liberty can occur in any care setting and is when a person has their freedom limited in some way.

Schedule 1, Part 1, Section 5(4) of the Human Rights Act, 1998, states that ‘everyone who is deprived of his [their] liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his [their] detention shall be decided speedily by a court and his [their] release ordered if the detention is not lawful’.

In England and Wales, the Deprivation of Liberty Safeguards (DoLS) are used to check that actions which limit the liberty of a person, who does not have the capacity to consent to this, are done in the least restrictive way necessary to keep them safe and that it is in their best interests.

DoLS provides a process for a deprivation of liberty to be made legal through either ‘standard’ or ‘urgent’ authorisation processes. These processes are designed to prevent the making of arbitrary decisions to deprive a person of liberty. They also give people a right to challenge deprivation of liberty authorisations.

2. Identifying Deprivation of Liberty

In 2014 a  ruling by the Supreme Court (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) held that, as well as hospitals and registered care homes, a deprivation of liberty can also occur in domestic / home type settings where the state is responsible for enforcing such arrangements. This may include a placement in a supported living arrangement in the community and in a person’s own home. Where a deprivation of liberty occurs outside of a hospital or registered care home, it must be authorised by the Court of Protection. See Section 11, Deprivation of Liberty outside a Hospital or Registered Care Home Setting.

It is crucial that all care providers can recognise when a person might be deprived of their liberty by applying the acid test (see Section 3, The Acid Test) and then take the required action by applying for an authorisation to the supervisory body / Court of Protection. This extends to all hospitals and registered care homes, domiciliary care providers, and day services.

Associated health and social care professionals must also be able to identify a potential deprivation of liberty, and know how to notify the supervisory body of deprivation of liberty which may be unauthorised.

3. The Acid Test

In its 2014 ruling, the Supreme Court clarified that there is a deprivation of liberty where the person:

  • is under continuous supervision and control (all 3 of these aspects are required); and
  • is not free to leave;
  • lacks capacity to consent to these arrangements; and
  • whose confinement is the responsibility of the State.

This means that if a person who lacks capacity to consent to this is subject to continuous supervision and control and is not free to leave they are deprived of their liberty.

The following are factors are not relevant to determining of there is a deprivation of liberty:

  • the person’s compliance or lack of objection;
  • the reason or purpose behind a particular placement; and
  • the extent to which it enables them to live a relatively normal life for someone with their level of disability.

See also Deprivation of Liberty Safeguards: At a Glance (SCIE) 

Practice guidance

When staff are working with people who may be deprived of their liberty, always consider the following:

  • Mental Capacity Act principles: the five principles and specifically ‘considering less restrictive arrangements’ principle (see Mental Capacity chapter).
  • Restrictions and restraint: when designing and implementing new care and treatment plans for individuals lacking capacity, be alert to any restrictions and restraint which may be of a degree or intensity that mean an individual is being, or is likely to be, deprived of their liberty (following the acid test supplied by the Supreme Court).
  • Less restrictive alternative: where a potential deprivation of liberty is identified, a full exploration of the alternative ways of providing the care and/ or treatment should be undertaken by the allocated worker, in order to identify any less restrictive ways of providing that care which will avoid a deprivation of liberty.
  • 16-17 years olds: A Court of Protection judgement – Birmingham City Council v D (January 29, 2016) – widens the acid test to apply to 16 and 17 year olds who lack capacity.

4. Restrictions and Restraint

There is a difference between deprivation of liberty (which is unlawful, unless authorised) and restrictions on a person’s freedom of movement.

Restrictions of movement (if in accordance with the principles and guidance of the Mental Capacity Act (MCA)) can be lawfully carried out in a person’s best interests, in order to prevent harm. This includes use of physical restraint where that is proportionate to the risk of harm to the person and in line with best practice.

Neither the MCA nor DoLS can be used to justify the use of restraint for the protection of members the public, members of staff, or other service users or patients.

Examples of restraint and restrictions include:

  • using locks or keypads to prevent a person leaving a specific area;
  • administration of certain medication, for example to calm a person;
  • requiring a person to be supervised when outside;
  • restricting contact with family and friends, including if they could harm the person;
  • physical intervention to stop someone from doing something which could harm themselves;
  • removing items from a person which could harm them;
  • holding a person so they can be given care or treatment;
  • using bedrails, wheelchair straps, and splints;
  • requiring close supervision / monitoring in the home;
  • the person having to stay somewhere they do not want;
  • the person having to stay somewhere their family does not want.

5. The Deprivation of Liberty Safeguards Process

5.1 Making an application for a standard authorisation

There are several stages involved in authorising a deprivation of liberty.  It is the local authority’s legal duty, as supervisory body, to ensure that where a person is being deprived of their liberty in a hospital or a registered care home, or a deprivation of liberty is being proposed, that steps are taken to safeguard them. This only applies to people where they are ‘ordinarily resident’. The supervisory body organises and oversees the entire process for authorising a deprivation of liberty  that occurs in a registered care home or hospital. (See Ordinary Residence chapter for more guidance on deciding ordinary residence where this is unclear).

Annex 1 in the DoLS Code of Practice provides an overview of the legal process that begins when the application for a standard authorisation is received.

As a first step, the managing authority (the hospital or registered care home) must fill out a Form 1 (see Deprivation of Liberty Safeguards: Resources (DHSC) requesting a standard authorisation. This should be sent to the supervisory body (the local authority), who will then decide whether the person meets the necessary requirements for a standard authorisation to be granted or not granted.

5.2 Managing authority granting an urgent authorisation

The managing authority must decide whether an urgent authorisation should be issued in addition to their application for a standard authorisation (this is their responsibility) or whether just a standard authorisation is needed.

An urgent authorisation enables the managing authority to lawfully deprive the relevant person of their liberty for a maximum of seven days where certain criteria are met. This can be extended for a further seven days by the supervisory body but only if certain criteria are met (see Deprivation of Liberty Safeguards: Resources (DHSC).

When issuing an urgent authorisation, the managing authority must reasonably believe a standard authorisation would be granted.

Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person and inform the person managing the person’s care. Information they provide may assist in preventing the adult being deprived of their liberty. Efforts to contact family and friends and any discussions had with them should be documented in the adult’s case records and on the urgent authorisation. The managing authority also need to ensure that they provide up to date contact information of friends / family / carers / advocates / allocated worker and other professionals on the Form 1 when they make the referral or grant themselves an urgent authorisation.

6. The Assessment Process

Before the supervisory body can grant an authorisation for a deprivation of liberty they will arrange for the following assessments to be completed:

  • mental health assessment: to confirm whether the person has an impairment / disturbance in the mind or brain;
  • eligibility assessment: to confirm the person’s existing or potential status under the Mental Health Act, and whether it would conflict with a DoLS authorisation (this would normally be in a hospital setting).
  • mental capacity assessment: carried out by either the mental health or best interest assessor to determine the person’s capacity to validly consent to their current care arrangements;
  • best interests assessment: confirms whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s best interests. The assessment will also recommend, how long the authorisation should last and who should act as a person’s representative throughout the period of authorisation;
  • age assessment: to confirm the person is at least 18 years of age for DoLS. If a person is between the ages of 16 and 18 years of age, application needs to be made to the Court of Protection if they need to be deprived of their liberty;
  • no refusals assessment: to confirm whether there is any valid advance decision which would conflict with the authorisation, or a person with a valid and registered Lasting Power of Attorney with authority over welfare decisions.

The assessments must be completed by specially trained professionals.

An Independent Mental Capacity Advocate (IMCA) may also be appointed during the assessment process if required if the person does not have any family / friends or other non-professionals involved (see Independent Mental Capacity Advocate Service chapter).

7. Granting or Not Granting a Standard Authorisation

If any of the requirements in Section 6, The Assessment Process are not met, deprivation of liberty cannot be lawfully granted. This may mean the registered care home or hospital must change its care plan to remove the restrictions and restraints causing the deprivation of liberty.

If all requirements are fulfilled, the supervisory body must grant the deprivation of liberty authorisation, for up to a maximum of one year. The supervisory body must inform the adult, those consulted, and the managing authority in writing.

The restrictions should cease as soon as the adult no longer requires them; they do not have to be in place for the full period of the authorisation.

At the end of the authorisation period, if it is believed the adult still needs to be deprived of their liberty, the managing authority must request another authorisation.

8. Conditions and Recommendations

The best interests assessor can recommend certain conditions are applied to the standard authorisation. The supervisory body are responsible for issuing the recommended conditions if they agree with them or can issue ones of their own on the authorisation, which must be fulfilled by the managing authority.

It is ultimately the supervisory body’s responsibility that any conditions attached to a DoLS authorisation are complied with. The supervisory body should also send a monitoring form to the registered care home or hospital where a person is deprived of their liberty for them to feedback about conditions.

The best interests assessor or supervisory body can also give recommendations to the local authority or organisation managing a person’s care relating to the deprivation of liberty.

9. Appointing a Relevant Person’s Representative

Everyone who is subject to a deprivation of liberty standard authorisation will be appointed a Relevant Person’s Representative (RPR). They must maintain frequent face to face contact with the person, and represent and support them in all related matters, including requesting a review or applying to the Court of Protection to present a challenge to a DoLS authorisation.

If there is no family member, friend, or informal carer suitable to be the person’s representative, the DoLS office will appoint a paid representative. Their name should be recorded in the person’s health and social care records.

The RPR has the right to request the advice and support of a qualified IMCA (see Independent Mental Capacity Advocate Service chapter).

In Re KT & others, which was heard before the Court of Protection, Mr Justice Charles approved the use of general visitors to act as Rule 3A (now Rule 1.2) Representatives when there is no one else – such as family members or advocates – available to act for the person who is the subject of the proceedings. General visitors are commissioned by the Court of Protection to visit the person and others involved in the case, and report back their findings. Appointing a general visitor safeguards the rights of the person in the proceedings.

It is also the responsibility of the Representative or Paid Representative to ensure that any conditions attached to a D0LS authorisation are complied with and report this back to the Court.

10. Reviewing the Standard Authorisation

This is also known as Part 8 DoLS Review. The registered care home / hospital (managing authority) must monitor and review the adult’s care needs on a regular basis and report any change in need or circumstances that would affect the deprivation of liberty authorisation or any attached conditions. The home / hospital must request a DoLS review if:

  • the adult (who is the ‘relevant person’) no longer meets any qualifying requirements;
  • the reasons they meet the qualifying requirements have changed;
  • it would be appropriate to add, amend or delete a condition placed on the authorisation due to a change in the adult’s situation;
  • the adult or their representative has requested a DoLS review, which they are entitled to do at any time.

The supervisory body where necessary, will arrange for assessors to carry out a review of an authorisation when statutory conditions are met. Statutory DoLS reviews do not replace other health or social care reviews.

A review of the DoLS requirements and or conditions can be undertaken, if necessary, at any time during an authorisation period.

10.1 Where the person ‘objects’ to being deprived of their liberty in a hospital or registered care home

Paragraph 4.45 of the DoLS Code of Practice highlights that ‘if the proposed authorisation relates to deprivation of liberty in a hospital wholly or partly for the treatment of a mental disorder, then the person (also known as the relevant person) will not be eligible for a deprivation of liberty if:

  • they object to being admitted to hospital, or to some or all the treatment they will receive there for mental disorder; and
  • they meet the criteria for an application for admission under section 2 or section 3 of the Mental Health Act 1983 (unless an attorney or deputy, acting within their powers, had consented to the things to which the person is objecting).

A judgement by Mr Justice Baker Royal Courts of Justice February 2015 ruled that in all cases where a person lacks capacity, a DoLS assessment has been completed and the person objects to their placement, a referral must be made to the Court of Protection under S.21A .

This referral would often be made by the Relevant Person’s Representative (RPR) (see Section 9,  Appointing the Relevant Person’s Representative) but if this does not happen the local authority should take action to make the referral themselves.

Practice lessons from the judgement include:

  • plan in advance: care should be taken to ensure that a DoLS assessment is completed prior to the move of the relevant person into residential accommodation. There should be very few exceptions to this rule. DoLS assessments should be completed in the case of ‘respite’ care if it is likely that this will become permanent either prior to the placement or with urgency after the placement is started;
  • RPR – conflict of interest: care should be taken that the person appointed as the RPR is willing to make a referral to the Court of Protection if the relevant person objects to their placement. This may be difficult if the RPR is a family member who has a personal interest in the placement of the relevant person. In this case a paid representative should be appointed;
  • local authority duty (supervisory body): the local authority has a duty to check that the RPR meets all the criteria and, if not, to take action to rectify this. They should make resources available to support IMCAs;
  • challenge to placement: where the relevant person is challenging their placement, action should be taken speedily to refer to Court of Protection.

Click here to view the judgement: AJ (Deprivation of Liberty Safeguards). 

11. Deprivation of Liberty Outside a Hospital or Registered Care Home Setting

This is also known as deprivation of liberty in a domestic setting.

Applications to authorise a deprivation of liberty in the community are made to the Court of Protection (contact the local authority’s legal department for more details). In most cases the authorisation is a paper-based application that should not require a court hearing.

As a practitioner you will also need to ascertain whether the person who has a care package at home or in supported living, may be deprived of their liberty by way of their care plan – that is, do they meet the ‘acid test’ as described above in Section 3, The Acid Test

  • If, after consideration, the person meets the ‘acid test’, you will need to make the application for a deprivation of liberty which can only be authorised by the Court of Protection.
  • Let your manager know that you are working with a person who may be deprived of their liberty. This is important as all referrals to the Court of Protection need to be sent via the relevant legal team and there is a cost involved.
  • Follow the relevant guide from your legal department to make a deprivation of liberty application as soon as possible.
  • It is possible for more than one application to be made to the Court of Protection at a time and the court is currently able to accept numerous applications at the same time.
  • It is important that a person who has a Deprivation of Liberty authorisation in the community also has a Representative (COP Rule 1.2 part 3a); this person is appointed by the Court.

Court of Protection Hub Case Summaries – Court of Protection Hub

12. Alerting to Unlawful Deprivation of Liberty

If a person (professional or otherwise) suspects a person is being deprived of their liberty under the acid test (see Section 3, The Acid Test) and it has not been authorised, they should first discuss it with the registered care home manager / hospital ward manager, domiciliary care or supported living manager.

If the manager agrees the care plan involves deprivation of liberty, they should be encouraged to make a request for authorisation. Everyone should be satisfied the care plan contains the least restrictive option available to keep the person safe, and that it is in the person’s best interest.

If the manager does not agree to make a request for a DoLS authorisation, the concerned person should approach the local authority or the Court of Protection, to discuss the situation and report the potential unlawful deprivation.

13. Consequences of an Unlawful Deprivation of Liberty

If an organisation breaches a person’s human rights (Articles 5 and 8) by unlawfully depriving them of their liberty, it could result in legal action being taken, including a court declaration that the organisation has acted unlawfully and breached the adult’s human rights. This could lead to a claim for compensation, negative press attention and remedial action taken by commissioners and regulators.

14. Patients Receiving Life Sustaining Treatment

See Intensive Care Society and the Faculty of Intensive Care Medicine Guidance on MCA / DoL

The judgement in R (Ferreira) v HM Senior Coroner for Inner South London held that patients in intensive care  are not necessarily deprived of their liberty as per the acid test in Cheshire West, as the facts in the two cases differ. The effect of this judgement is that even if a patient receiving ‘life sustaining treatment’ (S.4b MCA) appears to be deprived of their liberty, they will not be said to be so if the primary condition they are being treated for is a physical condition even if there is an underlying mental disorder and they are an inpatient in intensive care.

“There is in general no need in the case of physical illness for a person of unsound mind to have the benefit of safeguards against deprivation of liberty where the treatment is given in good faith and is materially the same treatment as would be given to a person of sound mind with the same physical illness.” (Judge Lady Justice Arden)

The Judge also held however that there may be some circumstances where a deprivation of liberty arises and needs to be authorised. In NHS Trust I v G [2015] for example, a hospital sought authorisation to deprive a pregnant woman of her liberty. The order prevented her from leaving the delivery suite and authorised invasive medical treatment such as a caesarean section.

Any treatment, therefore, for a primary condition which is a physical condition will not constitute a deprivation of liberty where the same treatment would be given to a patient who had capacity.

15. Further Reading

5.1 Relevant chapters

Mental Capacity

Independent Advocacy

11.2 Relevant information

Department of Health Advice Note (2015)

Mental Capacity / DoLS Codes of Practice Update (39 Essex Chambers)

Deprivation of Liberty at a Glance (Scie)

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