If a person has mental capacity it means they are able to make decisions for themselves. When a person lacks mental capacity, it means that they are unable to make a particular decision or take a particular action for themselves, at the time the decision or action needs to be taken.
The law says that when someone lacks mental capacity, they are unable to do one or more of the following:
The Mental Capacity Act (2005) is the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. It introduced a number of laws to protect these individuals and ensure that they are given every chance to make decisions for themselves.
The underlying philosophy of the Mental Capacity Act is to ensure that any decision made or action taken, on behalf of a person who lacks the capacity to make that decision or take that action themselves, is made in their best interests.
The safeguards were introduced in 2009 (as part of the Mental Capacity Act) to provide legal protection for vulnerable people in care homes or hospitals who are, or may become deprived of their liberty.
Sometimes when a person lacks capacity to make a decision about their care and support arrangements, it may be necessary for the organisation delivering that care and support to request an authorisation to legally deprive a person of their liberty. This could be because, for a person’s own safety, it may be necessary to restrict their freedom (by stopping them from leaving the place where care or treatment is being provided, for example).
In March 2014, the Supreme Court made a landmark judgement about what determined a Deprivation of Liberty. Following the cases “P v Cheshire West and Chester Council” and “P & Q, the Official Solicitor v Surrey Council” (commonly referred to as the “Cheshire West Judgement”), the legal definition of, and the test for Deprivation of Liberty must be followed.
For a person to be deprived of their liberty, they must be:
This is known as the “acid test” for Deprivation of Liberty. It has also said that the following are not relevant when determining whether a Deprivation of liberty is occurring:
If a person lacks capacity to consent to care arrangements involving a Deprivation of Liberty, authorisation is needed either through the Deprivation of Liberty Safeguards in the Mental Capacity Act or from the Court of Protection.
The DoLS place the responsibility on Managing Authorities (care homes or hospitals) to request authorisation of a Deprivation of Liberty.
Managing Authorities must apply to a Supervisory Body for authorisation of the DoL where it has been identified that a person who lacks capacity is being, or risks being, deprived of their liberty. The supervisory body for Stockton is Stockton-on-Tees Borough Council.
Deprivation of Liberty in Domestic Settings
The Supreme Court has ruled that a Deprivation of Liberty can occur in domestic settings where the State is responsible for putting in place such arrangements. This will include supported-living arrangements in the community.
Where there is, or is likely to be, a deprivation of liberty occurring in these circumstances, the deprivation must be authorised by the Court of Protection.
There are two types of authorisation.
When a supervisory body gives a standard authorisation of DoL, the managing authority may lawfully deprive the relevant person of their liberty in the care home or hospital named in the authorisation.
Standard authorisations can be granted for no more than 12 months.
Managing Authorities can give an urgent authorisation for deprivation of liberty where:
This means that an urgent authorisation can never be given without the supervisory body having a reasonable expectation that the qualifying requirements for a standard authorisation are likely to be met.
Urgent authorisations should normally only be used in response to sudden unforeseen needs. However, they can also be used in care planning.
An urgent authorisation cannot be granted for more than 7 days.
In exceptional circumstances, however, it may be extended for a further period of 7 days, but this must be authorised by the Supervisory Body.
Please see the leaflet Information about making an application to the Court of Protection to challenge an authorisation for further details.
Stockton-on-Tees Borough Council’s DoLS Team will arrange for a number of assessments to be completed.
When the completed assessments have been returned, a Senior Manager checks the assessments, and if it is appropriate, the Deprivation of Liberty will be authorised.
There is no standard length of time for a Deprivation of Liberty to be authorised, as each authorisation will be decided on an individual basis. The maximum length of time that an authorisation can be granted for is 12 months.
Once an authorisation is in place, it can be reviewed at any time. Anybody with an interest in the authorisation can request a review.
If it is felt that a Deprivation of Liberty is still occurring, or is still necessary, a new application for authorisation must be submitted to the Supervisory Body.
If the Deprivation of Liberty is no longer required, the authorisation will be reviewed and ended accordingly.
For further information please contact the DoLS Team.
Telephone: 01642 528460
Email: [email protected]
Address: DoLS Team, 2nd Floor, Queensway House, Billingham, Stockton-on-Tees, TS23 2NL