Practice No.
449
Reference: 10/06
Version 1 Page 1 of 12 New January 2010
HCC AS DOLS procedure
HCC AS MCA toolkit
Mental Capacity Act
2005
MCA DOLS Code of
Practice
NMC Code of Professional conduct
GSCC Code of Practice for
Social Care Workers
DEPRIVATION OF LIBERTY SAFEGUARDS
PROCEDURE FOR PROVIDER SERVICES
This summarises the requirements of provider services to ensure that service users are not deprived of their liberty unless it is within the framework of their legally assessed best interests.
1. What are ‘Deprivation of Liberty Safeguards’ ?
Deprivation of Liberty Safeguards (DOLS) form part of the Mental Capacity Act
2005.
They provide a legal framework for the authorization of deprivations of liberty of a person where:

They are living in a care home registered under the care standards act
2000, or in a hospital

They have a mental disorder

They lack the mental capacity to consent to being accommodated, to be given care or treatment

Restrictions are needed to protect that individual from harm

The restrictions are proportionate to the risk of harm and constitute a deprivation of liberty

There is no less restrictive option available
 It is in the person’s best interests.
The safeguar ds allow deprivation of liberty in the person’s best interests, to be authorised, following assessment, for up to a year at a time.
For more details see the MCA DOLS Code of Practice and the HCC Adult
Services DOLS Procedure.
2. Care-planning / Minimising Restrictions
To avoid unnecessarily depriving people of their liberty, staff must:

Make sure that all decisions are taken and reviewed in a structured way, with reasons for decisions recorded

Follow established best practice for assessment and care planning including risk assessments which support the decisions made about care provision

Where it is in doubt, make a proper assessment of whether the person lacks capacity to decide whether or not to accept the care or treatment

proposed, using the HCC MCA Toolkit where necessary

Ensure that care plans enable the person to be supported in a way which promotes independence and choice and does not restrict freedom and activity any more than is necessary to prevent them from coming to harm, in their best interests

Take proper steps to help the person retain contact with family, friends and carers and encourage the use of advocacy

Review plans on an ongoing basis, according to the relevant practice guidance for the professional and setting. In Hampshire Adult Services this will be in line with the guidance in Practice guideline 204

If the person has no family or other support network who can be involved, review care plans with an advocate if possible.
All admissions to care homes and all care plans implemented should either be:

Consented to by the resident, if they have capacity to consent to the admission and to the care plan

Best interest decisions, taken following an assessment of the resident’s mental capacity that established that they lack capacity to consent to the admission or the care plan.

This should be determined during the preadmission assessment, when the manager or designated person meets with the resident. See practice guideline 202
3. MCA – Section 5. Protection from Liability / Permissible Restraint
The Mental Capacity Act allows decisions to be made in the best interests of people who have been assessed as lacking mental capacity to make the decision for themselves.
‘Section 5 of the Act allows carers, healthcare and social care staff to carry out certain tasks without fear of liability. These tasks involve the personal care, healthcare or treatment. ’ (MCA Code of Practice Ch 6.)
The MCA Code of Practice outlines how section 5 provides protection from liability and for what actions.
To benefit from this protection, staff should ensure:

The person has been assessed as lacking capacity to make the decision for themselves
 That the decision made is in the person’s best interests

The decision does not conflict with one made appropriately by someone with lasting power of attorney or by a court appointed deputy

That if the decision involves restraint, then it is necessary to protect the person from harm and it is proportionate to the likelihood and seriousness of that harm. The code of practice is clear that if a person cannot get sufficient or appropriate care in their own home then a best interest decision may need to be made to arrange a move to a care home, even if the person ‘continues to object to the move’ and even if it involves the use of proportionate restraint.
 That any ‘restraint’ used to achieve admission or during a person’s stay does not amount to a deprivation of liberty – once the effects of the restraints and restrictions placed upon a person amount to a

deprivation of liberty, authorization under a formal framework such as the Mental Health Act or DOLS is required. See practice guidelines
105 and 106
4. Identification of Deprivation of Liberty
Responsibility for identifying potential deprivations of liberty and making referrals to the DOLS process lies with the Managing Authority – the registered manager of the care home or the body which manages the hospital.
The Mental Capacity Act Code of Practice (6.52
) identifies a number of factors which the European Court of Human Rights sees as factors contributing to
Deprivation of Liberty:

Restraint was used, including sedation, to admit a person who is resisting

Professionals exercised complete and effective control over care and movement for a significant period

Professionals exercised control over assessments, treatment, contacts and residence

The person would be prevented from leaving if they made a meaningful attempt to do so

A request by carers for the person to be discharged to their care was refused

The person was unable to maintain social contacts because of restrictions placed on access to other people

The person lost autonomy because they were under continuous supervision and control.
Staff may refer to the Hampshire DOLS Tool to help them to consider if a person’s care plan may require a referral to the DOLS process for further assessment.
The individual and where possible their family / friends should be informed, by the managing authority, of the DOLS referral prior to it being made, but certainly before the assessment process begins.
5. Referral Process
The responsibility for making DOLS referrals is with the managing authority
(registered manager). Referrals must be made to the relevant Supervisory Body:
For a care home,

the local authority which is funding the placement, or

Hampshire County Council (the host authority) if the person is self funding, or

the local authority where the person is
‘ordinarily resident’ if the placement is funded by a PCT,
For a hospital

the PCT which is funding the bed.

Referrals should be made using the appropriate Department of Health standard forms, available from the Department of Health website , or from the Hampshire
Dols Administrator . See also Process flowchart p.12.
5.1 Referral for a planned admission
This applies where it is believed a deprivation of liberty will occur, or for a person where it is believed a deprivation of liberty will occur in the future.
The managing authority should complete a referral for a Standard
Authorization on standard form 4 , sign and date it and send it to the DOLS
Administrator (see DOLS Flowchart ) by fax or email. This can be submitted up to 28 days before it will be needed.
The assessment must be completed within 21 days of receipt by the DOLS Administrator.
The service user and their family should be aware of this process should have been consulted on the development of the care plan.
– and
The managing authority should indicate if an Independent Mental Capacity
Advocate (IMCA) is required (see IMCA section)
5.2 Referral for a service user who is already deprived of their liberty
The managing authority should complete standard form 1 to grant an
Urgent Authorization for up to 7 days. At the same time they should complete form 4 , requesting assessment for a Standard Authorization and submit both forms to the DOLS Administrator.
An Urgent Authorization should not be granted unless a request for a standard authorization is also completed, and should only be granted if the managing authority believes that the 6 qualifying requirements for DOLS are likely to be met.
The qualifying requirements for DOLS are:

Age
– 18 or over

Mental Health
– has a mental disorder

Mental Capacity – lacks capacity to consent to being accommodated in the care home / hospital to be given care or treatment

No Refusals
– DOLS authorization does not contradict a valid decision made by an LPA, Deputy or a valid
Advance Decision

Eligibility – the person’s status or potential status under the Mental Health Act does not contradict or exclude the use of the DOLS authorization

Best Interests – that there is a deprivation of liberty occurring, it is in the best interests of the person, is to prevent the person coming to harm and is proportionate to the likelihood and seriousness of that harm occurring

Where a person requires a placement at short notice or in an emergency, but may require assessment for a DOLS authorization, this should not delay the placement and put the person at risk.
In such cases the admission should happen and the residential home should grant an Urgent Authorization and apply for a Standard
Authorization as above.
6. Unauthorised deprivation of liberty.
The resident or any other person may request that you deal with what they see as a deprivation of the resident’s liberty.
If they do so, the managing authority will have to either:

Review the care plan and inform the person why it is believed there is no deprivation of liberty happening or

Amend the care plan so that a deprivation of liberty is no longer occurring or

Grant an urgent authorization and submit with a request for a standard authorization to the DOLS Administrator.
If appropriate action is not taken by the managing authority, the other party is able to refer the matter directly to the Supervisory Body, to be assessed as an Unlawful Deprivation of Liberty.
7. Assessment
The DOLS process requires the assessment of 6 qualifying requirements.
These assessments will usually be completed by a Best Interests
Assessor (BIA) and a Mental Health Assessor (MHA) although in some circumstances there could be more than 2 assessors.
Managing Authorities should

Assist DOLS assessors to complete the DOLS assessments

Make care plans, assessments and case notes available to
DOLS assessors

Ensure that the individual and their families, where appropriate, are aware of the assessments and that they are likely to be contacted.
Once the assessments have been completed by the assessors, they will forward these to the Supervisory Body who will make the decision to authorise or reject the application.
8. Guardianship
It may be appropriate for some people to be subject to both DOLS and
Guardianship under the Mental Health Act, or it may be that Guardianship is more appropriate than DOLS in particular cases.

These two measures have different purposes and effects.
Guardianship allows the Guardian to determine where a person should live and gives a power to convey and return a person to that place, as well as some other conditions. Guardianship does not authorise a deprivation of the person’s liberty according to the MCA and the MHA codes of practice.
DOLS authorises a deprivation of th e person’s liberty arising from restrictions imposed upon them or limitations to their mobility in the provision of the accommodation and support.
9. Treatment
DOLS does not authorise treatment, although it may authorise accommodation for the purposes of giving treatment.
The actual treatment would be given under the Mental Capacity Act as a result of a best interests decision.
10. If DOLS is authorised
If an authorization is granted the managing authority should take all
‘practical and possible steps’ to ensure that the person understands the authorization and their rights in relation to it.
These are:

to challenge the authorization via the court of protection

to request a review of the authorization

to request the support of an IMCA
10.1 Conditions
As a part of the best interests assessment the BIA may recommend conditions that should be attached to the authorization.
The MCA DOLS code of practice states that conditions may relate to

Contact issues
 Issues related to the person’s culture

Issues that if not dealt with would mean the deprivation of l iberty was not in the person’s best interest

Steps that work toward avoiding deprivation of liberty in the future.
Conditions should not be recommended if they do not directly relate to the deprivation of liberty.
Conditions should not be used as a substitute for good care-planning.
If the assessor is to recommend conditions then they should discuss these with the managing authority or appropriate staff members in the home, to clarify that the conditions can be met.

Any condition must state whose responsibility it is to meet the condition and the managing authority must ensure that conditions are being met when they monitor the case.
11. Representatives
As a part of the safeguards, when a deprivation of liberty is authorised, a representative is appointed to independently represent the person who has been deprived of their liberty.
The representative is someone separate to the supervisory body and the managing authority who can:

maintain regular contact with the person

represent and support the person in matters related to the deprivation of liberty

trigger a review of the deprivation of liberty
 use the organisation’s complaints procedure

make an application to the Court of Protection.
The managing authority should ensure that the person and their representative understand:

the effect of the authorization

their right to request a review

the complaints procedures that they could use

their right to make an application to the Court of Protection to seek a variation or termination of the authorization

that an unpaid representative can seek support from a DOLS
IMCA. If this is requested, the supervisory body should be informed straight away.
The BIA will consider who may be suitable to be a representative.
If the individual has capacity to select their own representative and they suggest someone who is eligible (see MCA DOLS code of practice ch 7 ) the BIA must recommend that person.
Otherwise the BIA will assess whether any of the person’s family or friends are eligible and willing to be appointed representative. The BIA will explain the role to them and will seek their consent before making the recommendation.
If the person does not have any suitable and willing person who can be recommended to be their representative, they will be referred to the
Hampshire Paid Representative Service for a paid representative.
The care home staff should cooperate with the representative and ensure that they are able to have reasonable access to the person.
If the appointed representative does not keep in regular contact with the person, and regular contact should mean approximately once a fortnight

face to face contact, then the managing authority should inform the supervisory body who will investigate.
If the representative is not believed to be acting in the person’s best interest or representing their views appropriately, the managing authority should inform the supervisory body for them to investigate.
12. Independent Mental Capacity Advocates (IMCAs)
If a person is
‘ unbefriended
’
, ie they do not have anyone in an unpaid capacity who can be consulted on their behalf, such as family or friends, this should be highlighted on the standard form 4 , application for a standard authorization.
The supervisory body will then refer the person to the DOLS IMCA service , for an IMCA to represent them and provide a report to the BIA during the assessment process.
If the person or their representative want the support of an IMCA during the period of the authorization, to support them to exercise any of their rights under DOLS, they or the managing authority should ask the supervisory body to refer the person to the DOLS IMCA service.
If a person has a Paid Representative they are not able to use the IMCA service in this way.
13. Monitoring
The managing authority must monitor the person subject to a DOLS authorization to see if their circumstances change as this may mean they no longer need to be deprived of their liberty.
The care plan must set out a clear process for monitoring, stating who should monitor the care plan, when, and what factors should require a formal review to be requested from the supervisory body.
This monitoring must happen at least once a month whilst the DOLS authorization is in place and may need to be more frequent if the person’s condition is not stable.
14. Reviews
The supervisory body must carry out a review if it is requested by the service user, their representative or the managing authority.
If the managing authority wishes to request a review they should complete standard form 19 and submit this to the DOLS Administrator.

A review should be requested if

you believe that the person no longer meets the age, no refusals, mental capacity, mental health or best interests qualifying requirements (see MCA DOLS code of practice ).
 They don’t meet the eligibility criteria as they now object to receiving mental health treatment in hospital and they meet the criteria for admission under section 2 or 3 of the Mental
Health Act.

A change in circumstances means that a condition should be altered added or deleted.

The reasons for meeting a qualifying requirement are different than when assessed.
The supervisory body should tell the person, representative and managing authority when they intend to undertake a review.
The supervisory body will decide which, if any, of the qualifying requirements need to be reviewed and will arrange review assessments of those qualifying requirements.
If it is only the conditions which need review and the circumstances have not greatly changed, then best interests may not need to be fully reassessed and the conditions may simply be varied by the supervisory body.
If any of the qualifying requirements are found not to be met the authorization must be terminated immediately.
15. Moves
DOLS authorizations are building specific and cannot be transferred to a different care home or from a home to a hospital.
If a person is moved permanently to a new home or hospital the authorization must end. The managing authority must inform the supervisory body of this.
If the person moves temporarily to a hospital or to a family home where a
DOLS authorization or other detention is not required, the authorization may continue, unused, in the original care home, and can be used when the person returns. This means that a single DOLS authorization can cover a series of respite care stays.
If the person is detained in a hospital for treatment of a mental disorder under the Mental Health Act, the authorization may be suspended for up to
28 days (see above).
If a person temporarily moves to another care home or hospital where they are subject to an authorized deprivation of liberty, the original authorization will end and the DOLS Administrator must be informed.

16. Authorization
16.1 Suspension of Authorization
If the person who is subject to a DOLS authorization is detained in hospital under the Mental Health Act the managing authority should tell the supervisory body by sending form 14 to the DOLS administrator.
The supervisory body will then suspend the authorization for up to 28 days.
If the person becomes eligible again within 28 days then the managing authority should inform the DOLS administrator by sending form 15 . If this notice isn’t sent within 28 days the supervisory body will terminate the authorization.
16.2 Ending Authorizations.
Deprivation of liberty should be ended as soon as it is no longer necessary, by amending the care plan. The managing authority should not wait for a review or for the end of the authorization to end the deprivation of liberty. When an authorization ends the person can no longer lawfully be deprived of their liberty.
1 month before the authorization is due to expire the DOLS Administrator will send a memorandum to the managing authority, reminding them that it is about to end and asking that they either a) apply for a new authorization if the person still needs to be deprived of their liberty for their protection, or , b) send a copy of the new care plan to the DOLS Administrator if the managing authority believe the person no longer needs to be deprived of their liberty. This new care plan should demonstrate what circumstances have changed that mean there is no longer a deprivation of liberty occurring, or , c) inform the DOLS Administrator of any other changes that mean a new deprivation of liberty authorization is not required, such as the person leaving the home, detention under the Mental Health
Act or death. The DOLS Administrator should be informed of these changes as soon as they occur so that the authorization can be terminated.
The Supervisory Body will record the ending of an authorization by signing and issuing form 23 .
17. If DOLS is not authorized
If the authorization is not granted the managing authority should review the actual or proposed package of care to ensure that they do not deprive the person of their liberty.

It is not lawful to deprive a person of their liberty without appropriate authorization, i.e. DOLS or detention under the MHA.
The findings of the Best Interests A ssessor’s report should be considered when deciding what changes need to be made to prevent an unauthorised deprivation of liberty occurring.
Consideration may need to be given to an alternative placement or use of the Mental Health Act if it is not possible to delay or cease depriving the person of their liberty.
If the authorization was not granted because the person has capacity to consent to being accommodated for the purposes of treatment or care, then the care plan will need to be agreed with the person.
18. For situations of Fluctuating Capacity
Where a person is deemed to have regained capacity to consent to their care and treatment, the managing authority must assess whether it appears that this will be in the long term.
If the regaining of capacity is assessed as likely to be long term, the deprivation of liberty should be lifted immediately, and a formal review should be requested (see 14).
Where the regaining of capacity is likely to be temporary, and the authorization is likely to be needed again in a short period of time, the authorization should be kept in place and regularly reviewed.
NB . Remember, just because an authorization is in place, you do not need to deprive someone of their liberty. The deprivation of liberty should only occur when it is necessary for the best interest of the individual.
19. DOLS Resources online.
Hampshire DOLS Tool
Hampshire DOLS Process Flowchart
Hampshire DOLS Procedure
Hantsweb DOLS Page
HCC MCA Toolkit
DoH Standard DOLS Forms
References: DOLS Procedure for HCC Providers. Chris Lucas July 2009