Deprivation of Liberty Safeguards

1. Using this Procedure

This procedure should be used by practitioners acting on behalf of the supervisory body when carrying out statutory duties under the Deprivation of Liberty Safeguards Framework.

The supervisory body is the Local Authority area in which:

1. The person is ordinarily resident; or
2. The care home or hospital is situated where the person has no settled residence.

The supervisory body has legal responsibility for authorising (or not) deprivations of liberty under the DoLS Framework.

2. The Code of Practice

Practitioners with responsibility for carrying out qualifying requirement assessments, or for signing off authorisations must have regard for the Deprivation of Liberty Code of Practice at all times.

See Deprivation of Liberty Code of Practice.

3. Deprivation of Liberty Safeguards Forms

Click here to access the forms that should be used when:

1. Requesting authorisation of a Deprivation of Liberty;
2. Carrying out assessments to determine whether qualifying requirements have been met;
3. Authorising a Deprivation of Liberty;
4. Suspending or terminating an authorisation;
5. Requesting a review of an authorisation; and
6. Making a referral for an IMCA.

4. Local Processes and Forms

It is your responsibility to be familiar with local processes and forms and to use them where relevant and as required when carrying out the range of functions and tasks set out in this procedure.

5. Understanding the Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DoLS) is the legal framework for authorising deprivations of liberty when the person being deprived of their liberty is an adult (aged 18 years or above) and the deprivation is taking place in a care home or hospital.

The Framework

Click here to access 'Understanding the Deprivation of Liberty Safeguards', which is a dedicated section of the larger Mental Capacity Act 2005 Resource and Practice Toolkit. It provides general guidance about the Safeguards, as set out in Schedules A1 and 1A of the Act and is divided into the following sections:

1. Using this Guidance, Keywords and Forms;
2. When the Deprivation of Liberty Safeguards Apply;
3. Requesting a Standard Authorisation;
4. The Assessment of Qualifying Requirements for a Standard Authorisation;
5. The Best Interests Assessment;
6. The Eligibility Assessment;
7. Granting a Standard Authorisation;
8. The Independent Mental Capacity Advocate;
9. The Relevant Person's Representative;
10. Reviewing, Suspending and Ending a Standard Authorisation;
11. The Power of any Eligible Person to Request a Deprivation is Considered;
12. Urgent Authorisations.

6. Requests for a Deprivation to be Considered

Using this section of the procedure

This section of the procedure should be used by practitioners with responsibility for applying the DoLS framework when a request has been made for a potentially unlawful deprivation to be considered that is not a standard authorisation request.

The timeframe for making a decision

From the date that a request is received the Local Authority has a maximum of 7 days in which to:

1. Validate any request; and
2. Where valid, appoint a suitable person; and
3. Make a determination about the status of the person and the need to carry out further DoLS assessments.

Validating the circumstances of the request

Upon receiving the request you should first confirm that the basic circumstances upon which a request can lawfully be made apply. If they do not, the request is not a valid request and any assessment under DoLS should not be arranged.

The basic circumstances are that:

1. The person about whom the request relates is over the age of 18; and
2. They are detained in a hospital or care home; and
3. They are unable to consent to their care or treatment (which is not treatment under the Mental Health Act 1983); and
4. They are likely to meet the requirements under DoLS; and
5. The care home or hospital have been advised of this and asked to make a standard authorisation; and
6. The care home or hospital has failed to request a standard authorisation.

If it is not clear that all of the above apply you should contact the person making the request to obtain further information, or request they carry out additional steps as required.

If the circumstances of the request are valid

As long as all of the basic circumstances apply you should appoint a suitable person to determine whether the person is detained, and whether the qualifying assessments are likely to be met.

Support from a BIA or the DoLS manager should also be sought when the question of whether there is a deprivation of liberty (or whether a deprivation should be authorised) has already been answered negatively through a previous DoLS assessment process and there do not appear to have been any changes in circumstances.

Notifying others of the request and outcome

If a request has been declined

If, after gathering all relevant information you decide that the request is not valid you must prepare a formal letter setting out:

1. The request that was made;
2. That the request has been declined;
3. The rationale for the outcome; and
4. What steps should be taken if circumstances change in the future.

This letter should be sent to:

1. The person who made the request;
2. The person to whom the request relates;
3. The managing authority of the care home or hospital named in the request; and
4. Where relevant, any section 39D IMCA.

If a request has been validated

If you intend to appoint a suitable person to determine whether the person is detained, and whether the qualifying assessments are likely to be met you must prepare a formal letter setting out:

1. The request that was made;
2. That a suitable person is to be appointed to consider the deprivation;
3. The name of the person to be appointed; and
4. The next steps.

This letter should be sent swiftly to:

1. The person who made the request;
2. The person about whom the request relates;
3. The managing authority of the care home or hospital named in the request; and
4. Where relevant, any section 39D IMCA.

Recording the request and outcome

The request, outcome and rationale must be clearly recorded in the person's electronic file.

The Local Authority is also required by law to maintain accurate records of all requests and outcomes for central government data monitoring purposes. It is your responsibility to:

1. Familiarise yourself with the process for making such records; and
2. Ensure that such records are made.

Appointing a suitable person

The person appointed must be able to carry out any subsequent DoLS assessments if the person is found to meet the threshold for a standard authorisation to be considered. This means that most suitable persons appointed by the Local Authority will be Best Interest Assessors.

What the suitable person must decide

The suitable person that is appointed must decide, within the remaining timeframe whether or not:

1. The person is actually being deprived of their liberty; and
2. Whether or not further DoLS assessments are required.

For a deprivation of liberty to be present:

1. The person must be over the age of 18; and
2. They must be detained (or will be detained) in a care home or hospital; and
3. The detention is for the purpose of receiving care or treatment (which is not treatment under the Mental Health Act 1983); and
4. The person lacks capacity to consent to their accommodation, or to the care or treatment being received.

When considering whether or not the person is being 'detained' they are deemed so if:

1. They are subject to continuous supervision and control; and
2. They are not free to leave the place in which they are being detained; or
3. The care and treatment being received is imputable to the state.

Continuous supervision and control

All accommodation where care or treatment is provided will probably have some element of supervision or control. For example:

1. The person may require monitoring when taking their medication; or
2. They may have the nature of their food choices restricted due to a risk of choking;
3. They may be permitted to go out unaccompanied for short periods, but they are monitored or subject to restrictions about what they will do or when they will be back.

The more control or restrictions placed on a person, the more likely it is that the supervision and control would be ‘continuous’.

The following are examples of situations when supervision and control is likely to be continuous:

1. The person needs frequent or constant supervision for their safety;
2. The person is only ever left on their own for short periods of time;
3. Most aspects of life are decided by others (e.g. what to wear, what to eat, when to get up or go to bed, how to spend their time);
4. The person needs support with all or many everyday tasks and would not be permitted to carry them out without this support;
5. The use of Restraint or medication is used to routinely manage behaviour.

Not free to leave

A person is not free to leave if they:

1. Are required to be there to receive the care or treatment; and
2. Would be prevented from leaving on their own if they attempted to do so.

An important thing to remember about being 'free to leave' is that it does not matter whether the person is asking or attempting to leave; what matters is the response that they would receive if they were to do so.

Leaving should be considered in the context of both what would happen if the person wanted to leave for a short period (for example to go for a walk) and what would happen if they wanted to leave and not return i.e. live somewhere else.

Imputable to the state

Care and treatment is imputable to the state if the state has made the arrangements for that care to be provided or the state has become aware of the arrangements. This includes care and treatment already being provided by the state but also that which is privately arranged, about which the state becomes aware. For example, because a safeguarding concern is raised or a GP makes a referral. Once the deprivation of liberty has come to the attention of the local authority, it is imputable to the state. State imputability also applies where the court has appointed a Deputy, and the Deputy has made the care arrangements which deprive the person of their liberty.

Powers to gather information

To enable an evidence-based decision to be made the suitable person has powers to:

1. Examine and take copies of relevant health records;
2. Examine and take copies of any relevant record of the Local Authority (in respect of Adult Care and Support or Children's Services functions); and
3. Examine and take copies of any relevant records held by a registered service provider.

The suitable person can also consult with any person they deem it relevant to consult with.

Decision Making

The suitable person must make their decision by:

1. Considering all of the information gathered; and
2. Considering the views of persons consulted.

If any of the following persons were consulted the suitable person must take into account any submissions made, or information provided by them:

1. Any Relevant Person's Representative (RPR);
2. Any section 39A IMCA;
3. Any section 39C IMCA; and
4. Any section 39D IMCA.

Recording the decision and notifying others

The suitable person must make a written record setting out:

1. Whether the person is being deprived of their liberty;
2. The information gathered and person's consulted; and
3. The rationale for their decision.

This must be provided to the Local Authority who must in turn provide a copy to:

1. The person about whom the request was made;
2. The managing authority of the care home or hospital;
3. Any Relevant Person's Representative (RPR); and
4. Any section 39A IMCA.

The Local Authority is also required by law to maintain accurate records of all requests and outcomes for central government data monitoring purposes. It is your responsibility to:

1. Familiarise yourself with the process for making such records; and
2. Ensure that such records are made.

Next steps

If the person is deprived of their liberty

The record provided by the suitable person should be treated as a request for a standard authorisation and processed in the same way as a DoLS form 1.

The Local Authority must notify the following people that a standard authorisation request has now been made:

1. The person who made the original request for the deprivation to be considered;
2. The person about whom the request related;
3. The managing authority of the care home or hospital named in the request; and
4. Any section 39D IMCA.

Click here to access the procedure for receiving a standard authorisation request.

The suitable person should remain involved and must carry out further assessments as required to confirm whether the qualifying requirements are met and a standard authorisation can be granted.

The timeframe for carrying out these additional assessments is no more than 21 days from the date that the outcome was reached.

If the person is not deprived of their liberty

If the person is not deprived of their liberty (or if it is established that a standard or urgent authorisation is already in place) no further action under DoLS is required.

The Local Authority must notify the following people of the outcome, and of what to do should circumstances change:

1. The person who made the original request for the deprivation to be considered;
2. The person about whom the request related;
3. The managing authority of the care home or hospital named in the request; and
4. Any section 39D IMCA.

Where there is deprivation of liberty that falls outside of the circumstances where the Deprivation of Liberty Safeguards Framework applies, it should be referred to the appropriate court for authorisation.

7. Receiving a Standard Authorisation Request

Using this section of the procedure

This section of the procedure should be by practitioners with responsibility for applying the DoLS framework when a request has been made for a standard authorisation to be granted:

1. By the managing authority of the care home or hospital using DoLS form 1; or
2. Following a determination made by the suitable person (after receiving a request to consider an unauthorised deprivation).

The timeframe for granting a standard authorisation

From the date the request is received the Local Authority has:

1. A maximum of 28 days; in which to
2. Establish whether the 6 qualifying requirements are met; and
3. Where met, grant a standard authorisation; unless
4. The deprivation was first considered by a suitable person, in which case the maximum time is 21 days.

Validating the request

All requests for a standard authorisation made by the managing authority (registered person) of a care home, or a hospital must be made using DoLS form 1.

With the exception of pages 6 and 7, all pages of the form should be completed before making the request.

If any required section of the form has not been completed contact should be made with the managing authority to:

1. Obtain the missing information; or
2. Request that the missing information is provided.

Where the request is delayed to allow for additional information to be provided you should:

1. Agree a timescale in which the information should be provided;
2. Monitor the situation; and
3. Consider the need to ask the managing authority to make an urgent authorisation (if they have not already done so).

Making a written record of the request

A record of the request must be made in the person's electronic file on the day that it is received.

The Local Authority is also required by law to maintain accurate records of all requests of standard authorisations for central government data monitoring purposes. It is your responsibility to:

1. Familiarise yourself with the process for making such records; and
2. Ensure that such records are made.

Appointing a Best Interests Assessor

A Best Interests Assessor (BIA) should be appointed as soon as possible after validating the request for a standard authorisation.

If a request was previously made to consider an unauthorised deprivation, the person who was involved at that stage as a suitable person should, wherever possible continue to act as a Best Interests Assessor now.

Considering the requirement to appoint an IMCA

Deciding whether there is a statutory duty to appoint an Independent Mental Capacity Advocate (IMCA) is a priority task as, if an IMCA is required, a standard authorisation cannot lawfully be granted until they have carried out relevant functions to support and represent the person.

The managing authority should have clearly set out on page 4 of DoLS form 1 whether there is an appropriate person (carer, donee of a Lasting Power of Attorney or Deputy) that it would be appropriate to consult in determining what would be in the person's Best Interests.

If there is no appropriate person the Local Authority must appoint a section 39A IMCA (Independent Mental Capacity Advocate).

All IMCA referrals should be made using DoLS form 11.

8. Arranging the Qualifying Requirement Assessments

Using this section of the procedure

This section of the procedure should be used by practitioners with responsibility for arranging and coordinating the qualifying assessment process.

The qualifying requirements

There are 6 qualifying requirements, namely:

1. The age requirement;
2. The mental health requirement;
3. The mental capacity requirement;
4. The Best Interests requirement;
5. The eligibility requirement; and
6. The no refusal requirement.

Click here to access information about each of the qualifying requirements.

The qualifying requirement assessments

Whether or not each qualifying requirement is met (positive) or not (negative) is determined through an assessment, called a qualifying requirement assessment.

There are 6 assessments, because there are 6 qualifying requirements.

Each requirement should be assessed in turn, and if any requirement is not met:

1. The whole process of assessment must be stopped immediately; and
2. A standard authorisation must not be granted.

Allocating the assessments

All persons appointed to carry out an assessment must meet the following standard requirement:

1. Be able to demonstrate an applied knowledge of the Mental Capacity Act and related Code of Practice;
2. Be able to maintain appropriate records and provide clear, reasoned reports; and
3. Not be prohibited from working with vulnerable persons; or
4. Not be involved in providing care, treatment or making decisions about the person; or
5. Not be employed by the care home or hospital in which the person is detained.

In addition to the above there are very specific requirements about who can carry out which assessment. Use the table below to make sure the right assessment is allocated to the right person.

You should seek the advice of a manager if you are unclear about:

1. Who to allocate an assessment to; or
2. Whether a particular person is appropriate to carry out an assessment.

If previous assessments exist

Where existing assessments already exist (even if created for another purpose), it may be possible to use some or all of them, rather than carrying out new ones so long as:

1. Written copies of all assessments are available;
2. Previous assessments were carried out within the last 12 months;
3. Previous assessments comply with current requirements; and
4. There is no reason why previous assessments are no longer relevant.

If the previous assessment in question is a Best Interest assessment the supervisory body must take into account any subsequent written or verbal submissions made by:

1. Any Relevant Person's Representative (RPR);
2. Any section 39C IMCA; or
3. Any section 39D IMCA.

Coordinating assessments

When allocating assessments it is important to:

1. Keep a record of who has been allocated different assessments;
2. Keep a record of when assessments were allocated;
3. Agree a timeframe in which an assessment will be carried out;
4. Monitor whether assessments are completed to agreed timeframes; and
5. Review the outcome of each assessment.

Delayed assessments

Delays in completing assessments lead to:

1. Delays in standard authorisations being granted; and
2. Periods of unlawful deprivations.

Unlawful deprivations are a breach of human rights and can lead to claims for compensation. Every effort should be made to prevent delays from occurring.

Writing and providing reports

Each assessor must make a written record of any assessment carried out, using the correct DoLS form and within the agreed timeframe for completing the assessment.

DoLS form 3 must be used to record the following assessments:

1. Age;
2. Mental Capacity (unless already recorded on form 4);
3. No Refusals; and
4. Best Interests.

DoLS form 4 must be used to record the following assessments:

1. Mental Capacity (unless already recorded on form 3);
2. Mental Health; and
3. Eligibility.

When received, the supervisory body (Local Authority) must provide a copy of each assessment report to the following people:

1. The relevant person;
2. The managing authority of the care home or hospital; and
3. Any section 39A IMCA; and
4. In the case of the Best Interest Assessment, anyone consulted by the Best Interests Assessor.

Reviewing the outcome of each assessment

It is important that the overall outcome of each assessment is reviewed as soon as the corresponding report is received and if any requirement is not met:

1. The whole process of assessment must be stopped immediately; and
2. A standard authorisation must not be granted.

Click here to access the procedure when a standard authorisation is not granted.

9. Best Interests Assessment Guidance

Using this section of the procedure

This section of the procedure should be used by Best Interests Assessor's (BIA's) carrying out a Best Interests assessment.

The Best Interests assessment

Click here to access 'The Best Interests Assessment', which is part of the larger Mental Capacity Act 2005 Resource and Practice Toolkit. It sets out the requirements of a Best Interests assessment and offers practice guidance to BIA's.

Case law updates

The area of Best Interests is extremely complex and constantly evolving.

10. Granting a Standard Authorisation

When to use this section

This section of the procedure should be used by supervisory body authorisers when:

1. All of the qualifying requirements have been assessed; and
2. All of the qualifying requirements have been met; and
3. Written copies of all assessments have been provided.

The timeframe for granting a standard authorisation

From the date the request is received the Local Authority has:

1. A maximum of 28 days; in which to
2. Establish whether the 6 qualifying requirements are met; and
3. Where met, grant a standard authorisation; unless
4. The deprivation was first considered by a suitable person, in which case the maximum time is 21 days.

The duration of the standard authorisation

The authoriser at the supervisory body must consider the recommendations of the BIA about the duration of the deprivation, and must grant it for a period:

1. In line with the BIA's recommendation; or
2. Shorter than the BIA's recommendations; but
3. Never longer than the recommendations of the BIA.

Agreeing a standard authorisation in advance

Standard authorisations can be agreed in advance of the deprivation occurring if:

1. The DoLS assessments have been completed as part of a care and support planning process; and
2. The person's needs are not likely to change by the time the deprivation begins.

Setting and monitoring conditions

The authoriser at the supervisory body must consider any steps that the Best Interests has recommended the managing authority takes to:

1. Reduce the level of restriction on the person; or
2. Remove the need for the deprivation.

Unless there is reasonable cause not to, the recommendations of the BIA should be incorporated as conditions into the standard DoLS.

Where conditions exist, adequate arrangements should be made to monitor that they are met.

Appointing a Relevant Person's Representative (RPR)

Click here to access the section of this procedure relating to the appointment of a RPR's.

Making a record and providing copies

The standard authorisation that is granted must be recorded using DoLS form 5.

As soon as possible after granting the authorisation a copy must be provided to the following people:

1. The person who is deprived (the relevant person);
2. The Relevant Person's Representative (RPR);
3. The managing authority of the care home or hospital;
4. Any Section 39D IMCA; and
5. Every interested party consulted by the Best Interests Assessor.

The Local Authority is also required by law to maintain accurate records of all standard authorisations it grants for central government data monitoring purposes. It is your responsibility to:

1. Familiarise yourself with the process for making such records; and
2. Ensure that such records are made.

Making sure the person understands the authorisation

It is the responsibility of the managing authority of the care home or hospital to take reasonable steps to support the person being deprived of their liberty (the relevant person) to understand:

1. The effect of the authorisation;
2. Their right to make an application to the Court to review the authorisation;
3. The right to request the supervisory body review the authorisation;
4. The right to have a section 39D IMCA appointed; and
5. How to have a section 39D IMCA appointed.

Appointing a section 39D IMCA

A section 39D IMCA must be appointed when:

1. A family member or friend has been appointed as a RPR; and
2. They have requested the appointment of a section 39D IMCA.

A section 39D IMCA must also be appointed when the supervisory body believes that:

1. Without an IMCA the relevant person will be unable to exercise one or more of their relevant rights; or
2. Without an IMCA the relevant person will be unlikely to exercise one of more of their relevant rights; or
3. The relevant person has failed to exercise one or more of their relevant rights when it would have been reasonable to do so.

DoLS form 11 should be used to make any IMCA referral, in which the following must be clearly recorded:

1. The nature of the IMCA role (on page 2); and
2. The duration of the appointment.

Making sure the Relevant Person's Representative (RPR) understands the authorisation

It is the responsibility of the supervisory body (Local Authority) to take reasonable steps to support the RPR to understand:

1. The effect of the authorisation;
2. Their right to make an application to the Court to review the authorisation;
3. The right to request the supervisory body review the authorisation;
4. The right to have a section 39D IMCA appointed; and
5. How to have a section 39D IMCA appointed.

Click here to access the section of the procedure relating to the appointment of RPR's.

11. If a Standard Authorisation cannot be Granted

Using this section of the procedure

This section of the procedure should be used by supervisory body authorisers when:

1. Some or all of the qualifying requirements have been assessed; and
2. At least one of the qualifying requirements has not been met; and
3. Written copies of all completed assessments have been provided.

Recording the decision

DoLS form 6 must be used to record the decision not to grant an authorisation, and the reasons for it.

The Local Authority is also required by law to maintain accurate records of all standard authorisations it declines to grant for central government data monitoring purposes. It is your responsibility to:

1. Familiarise yourself with the process for making such records; and
2. Ensure that such records are made.

Notifying others of the outcome

Notification must be given in writing to the following people:

1. The person about whom the deprivation relates;
2. The managing authority of the care home or hospital;
3. Any section 39D IMCA; and
4. Every interested party consulted by the Best Interest Assessor.

If the deprivation is not in the person's best interests

If the managing authority of the care home or hospital continues to deprive the person of their liberty when the BIA has assessed it not to be in their best interests to do so this is an unlawful deprivation, and consideration should be given to:

1. Raising a safeguarding concern;
2. Raising a service provider concern; or
3. Applying to the Court of Protection (especially if there is disagreement about what is in the person's Best Interests).

12. Granting an Extension to an Urgent Authorisation

Using this section of the procedure

This section of the procedure should be used by supervisory body authorisers when the managing authority of a care home or hospital has requested an extension of an urgent authorisation using DoLS form 1 (pages 6 and 7).

When an urgent authorisation can be extended

The authoriser of the supervisory body should grant an extension to the urgent authorisation when all of the following apply:

1. The urgent authorisation has not already been extended;
2. A request has been made for a standard authorisation (using pages 1-5 of DoLS form 1);
3. There are exceptional reasons why the standard authorisation has not yet been granted or considered; and
4. It is essential to continue the existing detentions.

The timeframe of an extension

The longest period that an urgent authorisation can be extended is 7 days. Only 1 extension can ever be granted.

Recording the extension and notifying others

Page 7 of DoLS form 1 should be used to record the extension that has been granted.

The managing authority must be notified of the extension as soon as possible after it has been granted.

It is the responsibility of the managing authority of the care home or hospital to:

1. Vary the original authorisation; and
2. Notify other persons of the extension.

The Local Authority is required by law to maintain accurate records of all urgent authorisation extensions it grants for central government data monitoring purposes. It is your responsibility to:

1. Familiarise yourself with the process for making such records; and
2. Ensure that such records are made.

If the extension cannot been granted

If the extension cannot be granted, because one or more of the circumstances in which it should be granted do not apply the supervisory body must:

1. Notify the managing authority as soon as possible;
2. Make a record on the person's electronic file; and
3. Consider any action required under safeguarding.

13. Appointing a Relevant Person's Representative

Using this section of the procedure

This section of the procedure should be used by supervisory body authorisers granting a standard authorisation.

The role of the Relevant Person’s Representative (RPR) is to support the person being detained (the relevant person) in matters relating to the DoLs authorisation, including challenging the standard authorisation in the Court of Protection if the relevant person exhibits a wish to do so.

The timeframe for appointment of a RPR

A Relevant Person’s Representative must be appointed at the same time a standard authorisation is granted, or as quickly afterwards as practically possible.

The recommendations of the Best Interests assessor

The Best Interests assessor must:

1. Make a recommendation about who should be appointed as the person's RPR; and
2. Ensure that the recommendation is appropriate; and
3. If the recommendation is for a family member or friend to act, confirm whether a section 39D IMCA has been requested.

The authoriser of the supervisory body should appoint an RPR based on the recommendations of the BIA unless there is evidence to suggest that the recommended person is not appropriate to act. If there is no family member or friend who is appropriate to act, a paid RPR will be required.

Click here to access guidance about recommending RPR's, including who can and who cannot act as an RPR and the role of an RPR.

If the recommended RPR is not appropriate

If the authoriser of the supervisory body does not believe that the person recommended by the Best Interests assessor would be an appropriate appointment they should discuss their concerns with the BIA.

If it is agreed that the person is not appropriate the BIA should either:

1. Advise the relevant person, Donee or Deputy of this and invite them to make another selection; or
2. If the original recommendation was not based on the wishes of the person, Donee or Deputy, make a different recommendation.

If there is no other family member or friend who is appropriate to act, a paid RPR will be required.

Notifying a family member or friend of the intention to appoint

A formal letter must be sent to any potential RPR to offer them the appointment. This must include:

1. The duration of the appointment; and
2. The duties of a Relevant Person's Representative;

If there is likely to be a significant delay in the person responding to, or accepting the offer the appointment of an interim section 39C IMCA should be considered.

Appointing a family member or friend

The authoriser at the supervisory body must appoint a family member or friend when:

1. The BIA recommends the appointment; and
2. There is no evidence that the person would not be appropriate to act; and
3. The person has been offered the appointment in writing; and
4. The person has confirmed in writing that they are willing to accept the appointment.

The details of the family member or friend appointed must be clearly recorded on pages 4 and 5 of DoLS form 5.

A copy of page 4 must be provided to the newly appointed RPR.

Written confirmation of the appointment must also be sent to:

1. The relevant person;
2. The managing authority of the care home or hospital;
3. Any Deputy or donee of a Lasting Power of Attorney;
4. Any IMCA appointed under section 37, section 39A, section 39C or section 39D; and
5. Any interested person consulted with by the Best Interest Assessor.

Appointing a section 39C IMCA

The authoriser at the supervisory body must appoint a section 39C IMCA when, following a referral an IMCA has confirmed they are willing to accept the appointment.

The details of the IMCA appointed must be clearly recorded on pages 4 and 5 of DoLS form 5.

A copy of page 4 must be provided to the section 39C IMCA.

Written confirmation of the appointment must also be sent to:

1. The relevant person;
2. The managing authority of the care home or hospital;
3. Any Deputy or donee of a Lasting Power of Attorney;
4. Any IMCA appointed under section 37, section 39A, or section 39D; and
5. Any interested person consulted with by the Best Interest Assessor.

Appointing a section 39D IMCA

A section 39D IMCA must be appointed when;

c) A family member or friend has been appointed as a RPR; and

d) They have requested the appointment of a section 39D IMCA.

A section 39D IMCA must also be appointed when the supervisory body believes that:

1. Without an IMCA the Relevant Person's Representative will be unable to exercise one or more of their relevant rights; or
2. Without an IMCA the Relevant Person's Representative will be unlikely to exercise one of more of their relevant rights; or
3. The Relevant Person's Representative has failed to exercise one or more of their relevant rights when it would have been reasonable to do so.

DoLS form 11 should be used to make any IMCA referral, in which the following must be clearly recorded:

1. The nature of the IMCA role (on page 2); and
2. The duration of the appointment.

Terminating an appointment

Terminating the appointment of a RPR

The supervisory body must end the RPR appointment with immediate effect when:

1. The standard authorisation expires, is suspended or is terminated;
2. The RPR dies;
3. The RPR informs the supervisory body that they are no longer willing to act as a RPR;
4. The relevant person objects to a person they appointed continuing to act as their RPR;
5. A donee of a Lasting Power of Attorney or a Deputy objects to a person they chose continuing to act; or
6. The supervisory body believes the RPR is no longer a suitable person to act.

Unless the RPR has died a formal letter should be sent to the RPR advising them of:

1. The date that the appointment is to be terminated; and
2. The reasons for the termination.

All terminations must be recorded using DoLS form 8, and when the date of termination is reached written confirmation must be sent to:

1. The relevant person;
2. The managing authority of the care home or hospital;
3. Any donee or Deputy;
4. Any IMCA appointed under section 37, section 39A, section 39C or section 39D; and
5. Any interested person consulted with by the Best Interest Assessor.

If the standard authorisation is still in place the supervisory body must arrange for the appointment of another appropriate relevant person's representative, or a section 39C IMCA if there is likely to be a delay in appointing a replacement RPR and there is no family member or friend whom it would be appropriate to consult about what is in the person’s best interests.

Appointing a section 39C IMCA

The DoLS authoriser must request a section 39C IMCA when:

1. A standard authorisation has been granted; and
2. The appointment of the RPR has ended; and
3. There is no person who is not paid for providing care or treatment whom it would be appropriate to consult about what is in the person’s best interests.

DoLS form 11 should be used to make any IMCA referral, in which the following must be clearly recorded:

1. The nature of the IMCA role; and
2. The duration of the appointment.

The DoLS authoriser must appoint a section 39C IMCA when, following a referral an IMCA has confirmed they are willing to accept the appointment.

Written confirmation of the appointment must also be sent to:

1. The relevant person;
2. The managing authority of the care home or hospital;
3. Any Deputy or donee of a Lasting Power of Attorney;
4. Any IMCA appointed under section 39A, or section 39D; and
5. Any interested person consulted with by the Best Interest Assessor.

Terminating the appointment of a section 39C IMCA

The supervisory body must end a section 39C IMCA appointment as RPR when:

1. The standard authorisation expires, is suspended or is terminated; or
2. An appropriate person is appointed as RPR.

14. Reviewing a Standard Authorisation

Using this section of the procedure

This section of the procedure should be used by practitioners responsible for applying the DoLS framework whenever:

1. A request has been received to review an existing standard authorisation; or
2. Information has been received that may indicate a review is required.

Validating the circumstances of the request

Stage 1

You should first confirm that the review request has been made by a person or body with the authority to make the request, namely:

1. The registered person of the care home or private hospital (using DoLS form 10);
2. The NHS Trust to which an NHS Hospital belongs;
3. The relevant person;
4. The Relevant Person's Representative (RPR); or
5. The Court of Protection.

Stage 2

If the review has been requested by an authorised body the next stage is to be satisfied that there are grounds to carry out a review (unless the review is requested by the Court of Protection, in which case a request by the Court is grounds in itself).

Any request should specify the grounds upon which it is being made, which must be one of the following:

1. The non-qualification ground;
2. The change of reason ground; or
3. The variation of condition ground.

Click here to access further information about the different grounds of review as required.

Stage 3

The final stage is to be satisfied that there are no other reasons not to carry out the review, namely:

1. That the standard authorisation is currently suspended; or
2. The current authorisation is due to end and the managing authority of the care home or hospital has already made a request for a new standard authorisation.

Where a concern has been raised by another person

If a social care practitioner, health practitioner or any other person has provided information of concern regarding an existing standard authorisation you must apply stages 2 and 3 above to consider whether there is ground for review. If there is a ground for review arrangements should be made to carry out the review.

If the review request is declined

The request for review should be declined if there are no grounds for carrying out the review.

The person who made the review request should be notified that:

1. The review is not being carried out;
2. The reasons that the review is not being carried out; and
3. What to do if circumstances change.

The request, outcome and rationale must be clearly recorded in the person's electronic file.

The Local Authority is also required by law to maintain accurate records of all requests and outcomes for central government data monitoring purposes. It is your responsibility to:

1. Familiarise yourself with the process for making such records; and
2. Ensure that such records are made.

If the circumstances of the request are valid

The following people must be notified that a review is going to be carried out, preferably before it starts:

1. The relevant person;
2. The Relevant Person's Representative (RPR); and
3. The managing authority of the care home or hospital.

Carrying out a review ('non-qualification' or 'change of reason' ground)

The purpose of a review on the grounds of 'non-qualification' or 'change of reason' is to establish whether or not each of the qualifying requirements is still met, even if the reason that it is met may have changed.

The supervisory body must arrange to carry out a review of each qualifying assessment that has been identified as potentially changed in the review request, following exactly the same process used when carrying out the original qualifying assessment, as set out above in this procedure.

Carrying out a review ('variation of condition' ground)

The purpose of a review on the grounds of 'variation of condition' is to determine whether it is appropriate to withdraw, amend or include a condition in the standard authorisation.

Significant changes in circumstances

If the change in circumstances is significant the BIA must review the whole Best Interests assessment, following the same process used when originally carrying it out.

No significant changes in circumstances

If the change in circumstances is not significant the BIA should not review the original Best Interests assessment in full, only the conditions.

Deciding the outcome of the review

Click here to access guidance about deciding the outcome of the review.

Recording and notifying others

DoLS form 10 should be used to record the outcome of the review (pages 4 and 5).

Formal written notification of the outcome of the review, and any variation to be made to the standard authorisation must be sent to:

1. The relevant person;
2. The Relevant Person's Representative (RPR);
3. The managing authority of the care home or hospital; and
4. Any section 39D IMCA

The Local Authority is also required by law to maintain accurate records of all reviews and outcomes for central government data monitoring purposes. It is your responsibility to:

1. Familiarise yourself with the process for making such records; and
2. Ensure that such records are made.

15. Varying, Suspending and Terminating a Standard Authorisation

Varying a standard authorisation

A standard authorisation should only ever be varied:

1. Following a review; or
2. Under direction of the Court of Protection at any time.

Variations following a review should be recorded using DoLS form 10 (pages 4 and 5), and the existing standard authorisation should be amended by the supervisory body authoriser accordingly.

The amended standard authorisation should be provided to:

1. The person who is deprived (the relevant person);
2. The Relevant Person's Representative (RPR);
3. The managing authority of the care home or hospital;
4. Any Section 39D IMCA; and
5. Every interested party consulted by the Best Interests Assessor.

The Local Authority is also required by law to maintain accurate records of all variations made for central government data monitoring purposes. It is your responsibility to:

1. Familiarise yourself with the process for making such records; and
2. Ensure that such records are made.

Suspending a standard authorisation

A standard authorisation can only be suspended if the relevant person no longer meets the eligibility requirement of the qualifying requirements because of a change in their mental health status.

Click here for further information about the eligibility requirement.

It is the responsibility of the managing authority to notify the supervisory body that the relevant person no longer meets the eligibility requirement.

Upon receiving notification the supervisory body must suspend the authorisation using DoLS form 7.

The supervisory body must notify the following people that the authorisation is suspended:

1. The relevant person;
2. The Relevant Person's Representative (RPR); and
3. The managing authority of the care home or hospital.

A standard authorisation can only be suspended for 28 days. If it has not recommenced within that period, it must end.

It is the role of the managing authority to monitor whether the relevant person becomes eligible again and to notify the supervisory body. Upon being notified the supervisory body must recommence the authorisation and notify:

1. The relevant person;
2. The Relevant Person's Representative (RPR);
3. The managing authority of the care home or hospital; and
4. Any section 39D IMCA.

Terminating a standard authorisation

The standard authorisation must be terminated when:

1. It expires;
2. It is reviewed and the relevant person no longer meets the requirements of the DoLS;
3. The relevant person dies;
4. The relevant person moves and a new standard authorisation is granted, replacing the existing one;
5. The standard authorisation is suspended for more than 28 days;
6. The Court of Protection has made an order terminating the authorisation.

DoLS form 9 must be used to record that the standard authorisation has ended, and the reasons for ending it.

As soon as possible after ending it the supervisory body must notify the following people in writing:

1. The relevant person;
2. The Relevant Person's Representative (RPR);
3. The managing authority of the care home or hospital; and
4. Every interested party consulted by the Best Interests Assessor

If the relevant person moves

It is the responsibility of the managing authority of the care home or hospital where the person will be moving to request a new standard authorisation. The existing authorisation must be terminated on the day that the relevant person moves. If the new care setting has not requested a standard authorisation they should grant an urgent authorisation and make the request without delay.

If the deprivation needs to continue

It is the responsibility of the managing authority of the care home or hospital to make a further standard authorisation request using DoLS form 1 if:

1. The existing standard authorisation is going to expire; and
2. The relevant person is still being deprived of their liberty.

16. Applying to the Court of Protection

You should consider making an application to the Court of Protection when:

1. You cannot decide whether the deprivation is in the person's Best Interests; or
2. There is disagreement about whether the deprivation is in the relevant person's Best Interests, particularly when a family member or the relevant person does not agree with the supervisory body.

17. Challenging an Authorisation using Section 21A

Under Section 21A of the Mental Capacity Act 2005, a person who is deprived of their liberty under the DoLS Framework (the relevant person) has the right to have the arrangements reviewed by a court or tribunal. This is to ensure that their Human Rights are not breached. This involves an application to the Court of Protection, referred to as a ‘Section 21A Application’.

The application can be bought by the relevant person but can also be brought by the Relevant Person’s Representative (RPR). The relevant person has automatic access to legal aid to bring such an application.

Where the relevant person is objecting to being deprived of their liberty, or to their current care arrangements and either they or their RPR has not made an application then the Local Authority that granted the authorisation is expected to do so. For example, if a person with a DoLS authorisation in a care home wants to leave and go back to where they lived in the community.

18. The Future of the Deprivation of Liberty Safeguards

On the 16th May 2019, the Mental Capacity (Amendment) Act 2019 became an Act of Parliament (Law). This included a plan to implement a new authorisation framework known as Liberty Protection Safeguards (LPS).

However, the Government announced on 5 April 2023 that it would delay the implementation of the Liberty Protection Safeguards until “beyond the life of this Parliament.”

The Government explained that this was due to prioritising its work on the reform of adult social care. They plan to publish a summary of the responses to the LPS consultation that was carried out in due course. It is not yet known whether this will result in any updates to the Procedures or Codes of Practice.

This means that, for the foreseeable future, the Deprivation of Liberty Safeguards or, in cases where the DoLS do not apply, a Court Order remain the only two legal instruments available to authorise a deprivation of liberty.