Recognising and Responding to Deprivations of Liberty

1. Introduction

Deprivations of liberty that have not been authorised by either the Local Authority (through the DoLS framework) or the Court of Protection are:

1. Unlawful; and
2. A breach of a person's basic human rights.

As a social care practitioner you need to know:

1. What a deprivation of liberty is;
2. How to identify a possible deprivation; and
3. What action to take if you believe a deprivation is occurring.

This procedure should be used by all social care practitioners working with adults and young people from the age of 16, where there is reason to believe that a deprivation of liberty may be either occurring or likely to occur.

Practitioners working with children and young people under the age of 16 should refer to available children's services procedures, as the Mental Capacity Act 2005 does not apply.

In all cases, if you are unclear whether there is a deprivation of liberty, or of the action required, seek the advice of your line manager.

2. Identifying Deprivations of Liberty (ages 18 and over)

Places where a deprivation of liberty may occur

Deprivations of liberty can occur in a range of settings, including:

1. A care home (nursing or residential);
2. A hospital;
3. A home owned by the person;
4. A home rented by the person (including supported living or extra care);
5. A shared lives scheme;
6. A day centre or other place where the person receives care or treatment away from their home.

Identifying a possible deprivation of liberty

If the person is aged 18 or above and lacks capacity to consent to their care or treatment, it is likely that a deprivation of liberty is occurring if:

1. The person is under continuous supervision or control; or
2. The person is not free to leave the place where they are receiving care or treatment; and
3. The care or treatment being received is imputable to the state.

Continuous supervision and control

Whenever care or treatment is provided there will probably be 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.

Where the person lives in a care home (residential home or nursing home), 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.

Restraint

Restraint is defined in the Mental Capacity Act as:

1. Any act that uses, or threatens to use, force to carry out another function to which the person resists; or
2. Any act that restricts the person's freedom of movement, whether or not they resist.

The use of restraint will usually mean that the person is deprived of their liberty.

The only occasion where the use of restraint would not normally amount to a deprivation of liberty is in an urgent situation, where the person using restraint believes that in that moment, the use of restraint is necessary to prevent harm and where the level of restraint they have used is proportionate to the likelihood and seriousness of harm.

If a deprivation is occurring

If you believe that a deprivation is occurring your response will be determined by the environment in which the person is receiving the care or treatment that is depriving them of their liberty (see Section 3 or Section 4 below).

3. Responding to Deprivations of Adults in a Care Home or Hospital

The Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards is the legal framework for considering and authorising deprivations that occur:

1. When the person being deprived is aged 18 or over; and
2. The person is 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.

If a possible deprivation is occurring

If a standard authorisation is in place

If the care home or hospital confirms that the deprivation has been authorised through a standard authorisation you do not need to take any further action unless you believe that the level of restriction being placed on the person is more than is reasonably needed to provide the care or treatment.

See Section 8, Raising Concerns about an Existing Authorisation.

If a standard authorisation request has been made but not yet granted

If the care home or hospital confirms that a standard authorisation request has been made you do not need to take any further action unless it appears that the person is already being deprived of their liberty.

If it appears that the person is already being deprived of their liberty, you should ask the care home or hospital if there is an urgent authorisation in place.

An urgent authorisation is a self-authorisation made by the care home or hospital that lasts for 7 days (with the supervisory body (Local Authority) having the power to extend this once by a further 7 days). Urgent authorisations should only be used when it is in the best interests of the person for the deprivation of liberty to begin while the application for a standard authorisation is being considered.

If an urgent authorisation is not in place, you should notify the supervisory body.

If a standard authorisation has been considered but not granted

The supervisory body (Local Authority) may have already considered a standard authorisation in respect of the possible deprivation that you have identified and decided that it should not be granted. If this is the case, then further DoLS processes should not be carried out unless there has been a change in circumstances.

If you believe there has been a change in circumstances you should:

1. Explain to the registered person at the care home or hospital what you feel the changes in circumstances are; and
2. Ask them to make a referral for a standard authorisation (and put an urgent authorisation in place if the deprivation of liberty is already occurring).

If you have concerns that the registered person will not take appropriate action to authorise the deprivation, or will not act in a timely way you should:

1. Explain the possible implications of failing to act; and
2. Arrange to monitor the situation.

If you believe that there has not been a change in circumstances, further action under DoLS is not appropriate. You should instead consider:

1. The need to raise a safeguarding concern; and/or
2. The need to report formal concerns about any service provider.

If no authorisation is in place, requested or been previously considered

If the care home or hospital confirms that there is no authorisation in place (or requested or previously considered and not granted) you should:

1. Explain to the registered person at the care home or hospital why you feel a deprivation of liberty is occurring; and
2. Explore whether any steps can be taken to prevent the deprivation from occurring.

If the deprivation cannot be prevented you should ask them to make a referral for a standard authorisation (and put an urgent authorisation in place if the deprivation of liberty is already occurring).

At this point the registered person at the care home or hospital should make arrangements to take the steps as requested.

If you have concerns that the registered person will not take appropriate action to authorise the deprivation, or will not act in a timely way you should:

1. Explain the possible implications of failing to act;
2. Arrange to monitor the situation; and
3. Seek advice from your line manager.

If the care home or hospital fail to make a request

Under the Mental Capacity Act any person can make a request to the supervisory body to consider a possible deprivation of liberty under DoLS when a person over the age of 18:

1. Is detained in a hospital or care home; and
2. Is unable to consent to their care or treatment; and
3. Is likely to meet the qualifying requirements under DoLS; and
4. The care home or hospital have been advised of this and asked to request a standard authorisation; and
5. The care home or hospital has failed to request a standard authorisation.

This means that if the care home or hospital fails to request a standard authorisation you should seek the advice of your line manager as required and consider making a formal request to the supervisory body for the deprivation to be considered.

There may also be a need to consider:

1. The need to raise a safeguarding concern; and/or
2. The need to report formal concerns about any service provider.

Recording

You must ensure that the following information, where relevant is always recorded on the person's electronic file:

1. The possible deprivation of liberty that is occurring;
2. Whether there is already a standard authorisation in place; and
3. Where a standard authorisation is in place, whether you have any concerns about the level of restriction being placed on the person; or
4. Where a standard authorisation is not in place, whether there is an urgent authorisation in place; and
5. Where an urgent authorisation is not in place, what action you have asked the care home or hospital to take; and
6. Any monitoring arrangements required; and
7. Any action required under safeguarding; and
8. Any need to report concerns about the service provider; or
9. Any need to request the supervisory body consider the deprivation.

4. Responding to Deprivations of Adults in Other Settings

The Deprivation of Liberty Safeguards do not apply when a deprivation is occurring outside of a care home or hospital environment.

These deprivations must be authorised through a Court Order.

See Section 6, Applying to the Court.

5. Identifying and Responding to Deprivations of Liberty (ages 16 and 17)

Using this section of the procedure

This section of the procedure applies to social care practitioners carrying out any Care and Support function with young people aged 16 and 17 years old, who are receiving care or treatment in any setting.

Places where a deprivation of liberty may occur

Deprivations of liberty can occur in a range of settings, including:

1. The family home;
2. A care home;
3. A hospital;
4. A shared lives scheme;
5. A school or college;
6. A day centre or other place where the young person receives care or treatment away from their home.

Identifying a possible deprivation of liberty

If the young person is aged 16 or 17 and lacks capacity to consent to their care or treatment, it is likely that a deprivation of liberty is occurring if:

1. The young person is under continuous supervision or control; or
2. The young person is not free to leave the place where they are receiving care or treatment; and
3. The care or treatment being received is imputable to the state; and
4. The level of deprivation is not comparable to the level of restriction normally placed on a young person of that age.

Continuous supervision and control

Whenever care or treatment is provided there will probably be some element of supervision or control. For example:

1. The young 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 young 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 young person needs frequent or constant supervision for their safety;
2. The young 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 young 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 young 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 young person is asking or attempting to leave; what matters is the response that they would receive if they were to do so.

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. The deprivation of liberty is also imputable to the state where the court has appointed a Deputy, and the Deputy has made the care arrangements which deprive the person of their liberty.

Not comparable deprivation

The consideration of whether the restrictions imposed upon a young person amount to a deprivation of their liberty is more complex than for an adult. Whereas adults are free to do whatever they wish, young people who do not have disabilities are usually subject to some restrictions. It is therefore necessary to assess whether this young person is subject to a greater level of restriction normally placed on a young person of that age.

When care is being provided by the young person's family in the family home, this judgement should be made in the context of that particular family, having regard to:

1. Their beliefs and values; and
2. The level of restriction placed on siblings of a similar age; unless
3. The level of restriction being placed on those siblings is not deemed appropriate.

Note: Legal advice should be sought as required to make this determination.

Restraint

Restraint is defined in the Mental Capacity Act as:

1. Any act that uses, or threatens to use, force to carry out another function to which the young person resists; or
2. Any act that restricts the young person's freedom of movement, whether or not they resist.

The use of restraint will usually mean that the young person is deprived of their liberty.

The only occasion where the use of restraint would not amount to a deprivation of liberty is in an urgent situation, where the person using restraint believes that in that moment, the use of restraint is necessary to prevent harm and where the level of restraint they have used is proportionate to the likelihood and seriousness of harm.

If a deprivation is occurring

The Deprivation of Liberty Safeguards do not apply to 16 or 17 year olds, regardless of the setting in which they are being deprived of their liberty.

These deprivations must be authorised through a Court Order.

See Section 6, Applying to the Court.

6. Applying to the Court

Using this section of the procedure

This section of the procedure relates to Court applications for an Order authorising a deprivation of liberty.

It does not apply to adults receiving care or treatment in a care home or hospital because the legal framework to authorise deprivations of liberty in those settings is not the Court, but the Deprivation of Liberty Safeguards (DoLS).

For guidance on responding to these deprivations, see Section 3, Responding to Deprivations of Adults in a Care Home or Hospital.

When an application to the Court is required

An application to the Court is required for:

1. 16 or 17 year olds living in any setting; and
2. Adults who are not receiving care or treatment in a care home or hospital (and therefore outside the remit of the DoLS Framework).

Before applying to Court

Prior to making an application, you must determine whether the deprivation of liberty is in the person’s Best Interests. If it is, an application should be made.

If it is not clear whether the deprivation is in the person’s Best Interests, or if there is disagreement about this, an application should still be made, and the Court asked to make this determination.

If there is a consensus that the deprivation of liberty is not in the person’s Best Interests, then a Court application should not be made. This is because the Court will not grant an Order depriving someone of their liberty when it is not in their Best Interests to do so. Instead, either new arrangements which are in the person’s Best Interests should be agreed, or the deprivation of liberty must cease.

See: Making Best Interest Decisions, which is part of the larger Mental Capacity Act 2005 Resource and Practice Toolkit. It sets out the requirements of the Best Interests principle and offers practical guidance to apply it and make a lawful decision.

Note: If a determination is made that a deprivation of liberty is not in the person’s Best Interests and the individual or organisation providing care or treatment continues to act in a way that deprives them of their liberty, consideration should be given to:

1. Raising a safeguarding concern;
2. Raising a service provider concern.

Adults from the age of 18

An application should be made to the Court of Protection in all instances.

See: The Court of Protection, which is part of the larger Mental Capacity Act 2005 resource. It offers practice guidance to practitioners making an application.

Young people aged 16 and 17

Where there are no existing court proceedings about the young person and they lack capacity to make decisions about their care, the application should be made to the Court of Protection under the Mental Capacity Act.

Where there are ongoing proceedings about the young person in the family court, the application should be made to the family court in the first instance. To prevent the need for the involvement of multiple courts, the Mental Capacity Act gives permission for a family court that is already involved in family proceedings to hear the matter. However, the family court may transfer the deprivation of liberty issues to the Court of Protection to determine the family court it considers that to be more appropriate.

Where the young person does not lack capacity and there are no ongoing proceedings about them, an application may be made to the National Deprivation of Liberty Court under the inherent jurisdiction.

You must therefore establish whether:

1. There are on-going family proceedings in a family Court; or
2. There is an existing Court Order made by a family Court; and then
3. Notify your legal support as soon as possible; so that
4. Arrangements can be made to establish whether the family Court will hear the matter.

Where there are existing proceedings in the family court, you should only proceed to make the application to the Court of Protection or National Deprivation of Liberty Court if:

1. The family Court declines to hear the case; and
2. The family Court does itself not transfer the case to the Court of Protection or National Deprivation of Liberty Court.

Any application that you make in this situation should explain:

1. The on-going role of the family Court; and
2. The reasons that the family Court have provided about why they will not hear the case.

7. Raising Concerns about an Existing DoLS Authorisation

Using this section of the procedure

This section of the procedure applies to all social care practitioners carrying out any Care and Support function with adults from the age of 18 where a standard DoLS authorisation is in place.

Examples of concerns

The following are all examples of concerns that you could identify about an existing authorisation:

1. It may no longer be in the person's Best Interests to be detained in the care home or hospital;
2. The manner in which the care or treatment is provided may no longer be the least restrictive option;
3. The care home or hospital is not complying with any conditions upon which the authorisation was granted; or
4. The authorisation may no longer be required.

Raising the concerns

You should raise your concerns with one (or both) of the following people:

1. The registered person at the care home or hospital; or
2. The Relevant Person's Representative (RPR).

It is their responsibility to:

1. Consider whether the concerns are grounds to request a review of the authorisation; and
2. If so, request a review of the authorisation.

The role and responsibility of the registered person

The registered person at the care home or hospital has a legal obligation to request an authorisation is reviewed whenever they believe that one or more of the 6 qualifying requirements are no longer met.

See: The Assessment of Qualifying Requirements for a Standard Authorisation for information about the 6 qualifying requirements.

The role and responsibility of the RPR

The Relevant Person's Representative should request a review of the authorisation whenever there are indicators that:

1. The person who lacks capacity may be unhappy with the authorisation;
2. It may no longer be in the person's Best Interests to be detained in the care home or hospital;
3. The manner in which the care or treatment is provided may no longer be the least restrictive;
4. The care home or hospital is not complying with any conditions upon which the authorisation was granted; or
5. The authorisation may no longer be required.

If the person who lacks capacity wishes to challenge the authorisation as opposed to request a review, the Relevant Person’s Representative can make an application to the Court of Protection under Section 21A of the Mental Capacity Act 2005. The person’s wish to challenge may be expressly stated or implied by their actions (for example, if they repeatedly try to leave the place where they are receiving care or treatment).

Concerns about the response of the registered person

If you are concerned that the registered person will not consider the need to request a review, or will not take appropriate action to request any review that is required you should:

1. Seek the advice of your line manager as required; and
2. Notify the supervisory body of your concerns.

There may also be a need to consider:

1. The need to raise a safeguarding concern; and/or
2. The need to report formal concerns about any service provider.

Concerns about a Relevant Person's Representative (RPR)

You should notify the supervisory body if you have any concerns that a RPR:

1. Will not consider information provided by others about the possible need to request a review; or
2. Is finding it difficult to fulfil their role; or
3. Is not able to adequately fulfil their role; or
4. Is no longer suitable to act in the role.

See: The Relevant Persons Representative for information about the role of the RPR, including which people can and cannot act as a RPR.

The supervisory body is responsible for:

1. Appointing suitable people to act as a RPR;
2. Supporting RPR's to carry out their role;
3. Monitoring how RPR's are carrying out their role; and
4. Ensuring the RPR remains an appropriate person to act for the duration of the authorisation.

Recording

You must ensure that the following information, where relevant is always recorded on the person's electronic file:

1. The concerns that you have about the authorisation;
2. How you have raised the concerns (RPR/registered person/both);
3. Any concerns that you have about the RPR or the registered person;
4. Whether you have notified the supervisory body;
5. Any action required under safeguarding;
6. Any need to report concerns about the service provider.

8. Challenging a DoLS 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 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 person being deprived of their liberty but can also be brought by the Relevant Person’s Representative (RPR). The person has access to legal aid to bring such an application.

Where the person is objecting to being deprived of their liberty, or to their current care arrangements and 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.