Deprivation of Liberty Safeguards Procedure

1. Using this Procedure

This procedure should be used by practitioners acting on behalf of the supervisory body (Swindon Borough Council) 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.

The Deprivation of Liberty Code of Practice can be accessed by clicking here.

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. 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.

Deprivation of Liberty under DoLS

Under the DoLS framework a deprivation of liberty occurs when all of the following apply:

1. The person affected is over the age of 18; and
2. They are 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.

A person is 'detained' 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;
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. 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 that 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.

Deprivation of Liberty in Other Circumstances

It is important to note that protection from arbitrary detention is a human right under the European Convention on Human Rights (the ECHR) and the Human Rights Act 1998 and is therefore not limited to the circumstances set out above.

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.

For further guidance, please see the procedure Recognising and Responding to Deprivations of Liberty.

5. Receiving a Standard Authorisation Request

Routes of request

There are 4 primary routes of request for a standard authorisation:

1. From the managing authority (where there already is an urgent authorisation in place);
2. From the managing authority (where there is no urgent authorisation in place);
3. From the managing authority (where an existing standard authorisation is due to expire);
4. A request from a practitioner involved in Care and Support Planning or Review.

The timeframe for granting a standard authorisation

No urgent authorisation in place

From the date the request is received the supervisory body has:

1. A maximum of 21 days; in which to
2. Establish whether the 6 qualifying requirements are met; and
3. Where met, grant a standard authorisation.

Urgent authorisation in place

If an urgent authorisation is already in place the supervisory body timeframe cannot exceed the date on which the urgent authorisation ends.

Note: It is possible to extend an urgent authorisation at the request of the managing authority. The process of extending an urgent authorisation can be found in Section 6, Extending an Urgent Authorisation.

Receiving a request

Reviewing the information provided

Upon receiving a request the DoLS Coordinator should swiftly review the information provided:

1. To verify the circumstances of the request;
2. To make sure the correct form has been completed;
3. To make sure all required information is included.

In order for the request to be valid, the information provided should contain evidence of all the following:

1. The person is over the age of 18;
2. They are detained (or will be detained) in a care home or hospital;
3. They are unable to consent to their care or treatment;
4. They are likely to meet the requirements under DoLS.

If all these criteria are not met, the deprivation cannot be authorised under the DoLs Framework and consideration may need to be given to whether an application to court is needed.

If there is missing or insufficient information provided contact should be made with the person who completed the form to either:

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

In addition, if it appears that the person is already being deprived of their liberty and the managing authority has not put an urgent authorisation in place they should be asked to do so.

Where necessary the DoLS coordinator should seek the support of a Best Interests Assessor (BIA) to establish the above.

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.

Making a 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, even if there is outstanding information.

The Local Authority is also required by law to maintain accurate records of all standard authorisation requests it receives for central government data monitoring purposes.

Notifying others

Regardless of whether or not further assessments are to be carried out, the DoLS coordinator should notify the following people in writing that a standard authorisation request has been made:

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 (if they did not make the request); and
4. Any section 39D IMCA (where there is already an authorisation in place).

If further assessments are not to be carried out the letter should also include the following information:

1. The rationale for the outcome; and
2. What steps should be taken if circumstances change in the future.

Appointing a Best Interests Assessor (BIA)

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

Appointing 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.

6. Extending an Urgent Authorisation

The length of extension

The maximum length of time that an urgent authorisation can be extended is 7 days and it may only be extended once.

Making an extension request

Only the managing authority can make a request, and only 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;
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 detention.

Authorising an extension

The DoLS coordinator at the supervisory body should pass all extension requests to an authoriser straight away.

The extension must be authorised if all of the above conditions apply.

Remember: An urgent authorisation can only be extended once and for no more than 7 days.

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.

Recording an extension

DoLS form 1 should be used to record the extension that has been granted (or not granted).

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

Extensions that are not granted

If the extension cannot be granted, because one or more of the circumstances in which it must 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.

7. Arranging the Assessments

Using this section of the procedure

This section of the procedure should be used by practitioners with responsibility for arranging and coordinating the assessments that will determine whether the 6 qualifying requirements have been met. This is normally the DoLS coordinator or the appointed Best Interests Assessor (BIA).

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 assessments

Whether or not the above qualifying requirements are met (positive) or not (negative) is determined through an assessment (formally 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 the DoLS 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.

Note: A cautious approach to this should be taken, and if there is any doubt whatsoever about the appropriateness of an existing assessment a new one should be completed.

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.

A copy of each assessment report must be provided to the following people:

1. The relevant person;
2. The managing authority of the care home or hospital; and
3. Any section 39A IMCA.

Reviewing the assessments

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.

8. 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. 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.

9. Granting a Standard Authorisation

When to use this section

This section of the procedure should be used when:

1. All of the qualifying requirements have been assessed; and
2. All of the qualifying requirements have been met.

The timeframe for granting a standard authorisation

No urgent authorisation in place

From the date the request is received the supervisory body has:

1. A maximum of 21 days; in which to
2. Establish whether the 6 qualifying requirements are met; and
3. Where met, grant a standard authorisation.

Urgent authorisation in place

If an urgent authorisation is already in place the supervisory body timeframe cannot exceed the date on which the urgent authorisation (or extension) ends.

The duration of the standard authorisation

The DoLS authoriser 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 DoLS authoriser must consider any steps that the Best Interests Assessor 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 authorisation.

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

There are likely to be local variations regarding the use of conditions in a standard authorisation. It is the responsibility of the BIA and authorisers to be aware of the local protocol.

Appointing a Relevant Person's Representative (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.

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 (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.

Making sure the person understands the authorisation

It is the responsibility of the managing authority (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 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 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.

10. When a Standard Authorisation cannot be Granted

Using this section of the procedure

This section of the procedure should be used 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.

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.

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 (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).

11. Appointing a Relevant Person's Representative

Using this section of the procedure

This section of the procedure should be used when a standard authorisation has been granted.

The role of the RPR

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

As part of their role the Best Interests assessor must:

1. Make a recommendation about who should be appointed as the relevant 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 DoLS authoriser 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.

See The Relevant Person's Representative for 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 DoLS authoriser 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 DoLS authoriser 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 DoLS form 5.

A copy of the last page 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 39A, section 39C 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:

1. A family member or friend has been appointed as a RPR; and
2. They (or the relevant person) 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; and
2. The duration of the appointment.

Terminating an appointment

Terminating the appointment of an 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.

12. Reviewing a Standard Authorisation

Using this section of the procedure

This section of the procedure should be used when:

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.

Making a review request

Only the following people have the authority to request that a standard authorisation is reviewed:

1. The registered person of the care home or private hospital;
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.

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

Receiving a request

Reviewing the information provided

Upon receiving a request the DoLS Coordinator should swiftly review available information to:

1. Confirm there are grounds for review; and
2. Make sure there are no valid reasons for not carrying out the review.

Where necessary the DoLS coordinator should seek the support of a BIA or the DoLS manager to establish this.

Grounds for review

There are 3 grounds for review, and if any are present a review must be arranged;

1. One or more of the qualifying requirements is no longer met (known as the non-qualification ground);
2. The reason the relevant person meets a qualifying requirement is different than the reason in the original assessment (known as the change of reason ground);
3. The conditions on the standard authorisation need amending (known as the variation of condition ground).

Note: There are also grounds for review whenever a request has been made by the Court of Protection.

When a review should not be arranged

A review should not be arranged when none of the grounds for review above are present.

In addition, a review should also not be arranged when;

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

Making a record of the request

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

The supervisory body is also required by law to maintain accurate records of all review requests it receives for central government data monitoring purposes.

Notifying others

If a review is to be arranged

The DoLS coordinator should notify the following people that a review is going to be carried out, preferably before it starts:

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

If the request is declined

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.

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

See: The Outcome of the Review, part of Reviewing, Suspending and Ending a Standard Authorisation guidance in the Mental Capacity Act 2005 Resource and Practice Toolkit.

Recording and notifying others

DoLS form 10 should be used to record the outcome of the review.

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.

13. 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, and the existing standard authorisation should be amended by the DoLS 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.

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.

See: The Eligibility Assessment 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 (the care home or hospital) where the relevant 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 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.

14. Applying to the Court of Protection

Applications to the Court of Protection should be considered when:

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

15. 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.

16. 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.