What is the ‘acid test’ of deprivation of liberty?
Many people find it hard to identify deprivation of liberty. This is partly because it builds on restrictions and restraints. (See ‘What is the relationship between restriction and deprivation of liberty?’ above.)
In 2014 the UK Supreme Court helpfully provided a clear way to recognise deprivation of liberty. This was in the case usually called ‘Cheshire West’, and you can read it here.
The Court said, in its well-known ‘acid test’, that someone who lacks capacity to consent to their care plan is deprived of their liberty if they
- Are under complete supervision and control. This does not mean ‘line of sight’ observation at all times. The way to think of it is: do staff know at all times pretty much what the person is doing and where they are and
- Are not free to leave. This means free to leave permanently to live somewhere else of their choice; someone may be able to go out, accompanied or even alone, and could go on holiday, say, with relatives, but only with staff agreement
The Court made it clear that a person’s contentment with their care plan, or whether some level of restraint is excellent in allowing the person to live their best life, are not relevant to whether a care plan is depriving someone of their liberty. As the Cheshire West judgement famously says, ‘A gilded cage is still a cage.’ If a situation would be a deprivation of the liberty of anyone without any mental disorder, it still is for the person with dementia, acquired brain injury or a learning disability.
In deciding if someone might be deprived of their liberty, you need to consider the entire care plan; there will certainly be restraints as defined in the MCA (see ‘Restriction and Restraint,’ page 19) but it is the cumulative effect of those restraints that might amount to a deprivation of liberty, by meeting the ‘acid test’. Remember to consider the effects of less obvious restraints, such as covert medication to calm a person’s mood.
What should a provider do if they think someone is deprived of their liberty by their care plan?
The first step is always to consider if the restrictions and restraints are individually and together necessary to prevent harm to that person, a proportional response to how likely that harm would be without the restraint, and how serious it would be for the person. At this stage, it might be possible to work with the person, their relatives, and commissioners to create a less restrictive way of looking after this individual.
If there is still a risk that they are deprived of their liberty, the route to protect their rights is different, depending on their age and the registration status of the care setting. This is because the deprivation of liberty safeguards (DoLS) only applies when people lacking mental capacity are:
- Aged 18 or over, and
- Cared for in a registered care home or hospital.
Protecting someone’s rights when DoLS cannot be used
Deprivation of liberty can only be authorised for community settings by the Court of Protection. This means if the person is 16 or 17, or in supported living, extra-care housing or their own family home, DoLS cannot be used. Applications to the Court are generally made by the Commissioners of the service and/or the local authority.
The role of providers is limited to giving accurate information about the care plan, how the person experiences the necessary restrictions, and how the provider tries to mitigate the effects of restraint by enhancing the person’s lived experience as much as they can.
As you can see this leaves out many vulnerable people who would benefit from the sort of scrutiny of their care plan and protection for their essential human rights that are provided for some by DoLS. The plan to replace DoLS by the liberty protection safeguards (LPS) has now been shelved, at least until the next parliament. This makes it more important than ever that providers of care outside the protection of DoLS are fully committed to working within the wider MCA, of which DoLS are, remember, a part.
How should a care home or hospital provider apply for a DoLS authorisation?
To apply, complete DoLS form 1 as updated by the Association of Directors of Adult Social Services (ADASS) and send it to the relevant local authority supervisory body (DoLS team). Finding the right supervisory body relies on knowing the person’s ‘ordinary residence’; it will often be the nearest local authority, but some authorities routinely place people very far away. Look at the admission records to identify who arranged the admission. If you get this wrong, there is no penalty: the local authority supervisory bodies have a ‘no wrong front door’ policy and will forward the application to the right one if it is not them.
In considering the urgency of an application, local authorities often use an ADASS triage tool.
In completing the form, consider the urgency of this application. For example, you may inform the supervisory body where restrictions are relatively light touch, perhaps because the person is happy to go along with them. In contrast, be sure to record the kind of issues that make this referral request particularly urgent, by suggesting that the person’s rights are being very intensely restricted. See the form for these, which include
- evidence (from words or actions) that the person is trying determinedly to leave or otherwise objects strongly to their placement
- situations where a person’s relatives or friends are denied access to them
- settings that are particularly restrictive by nature, such as a psychiatric hospital
- relatives or friends object strongly to the placement and the restrictions.
How and when do we tell CQC about DoLS or a Court application to deprive someone of their liberty?
Providers must notify CQC about the outcome of an application, even when they have not made the application themselves (as when the application is to the Court of Protection).
You only make the notification when you know the outcome of the application. The outcome will be ‘authorised’ or ‘not authorised’. Common reasons for DoLS applications to fail to be authorised are that the person no longer lives at that place, or that they have regained capacity, or that they have died. The forms are fairly simple and completing them is straightforward.
The Courts are currently facing backlogs, and the DoLS process can take longer than it should, especially as the entire DoLS scheme was blighted for several years by the expectation that they would soon be superseded by LPS. Make sure you don’t lose sight of the requirement to notify CQC when you know the outcome, by recording the requirement, and keeping this linked to the progress of DoLS assessment or Court proceedings.
What to expect during a DoLS assessment
The process consists of independent scrutiny to protect the person’s rights. The assessors check that the person really does lack capacity to consent to being in this setting to be given the necessary care and treatment. The assessors make sure that the person would not be better protected by admission under the Mental Health Act. Crucially, one of them will decide if the concrete restrictions and restraints in place both do meet the acid test for deprivation of liberty, and then whether they are both necessary to prevent harm to the person and a proportionate response to the likelihood and seriousness of that harm.
Be prepared for two different assessors to visit and review files as well as interview the person. These assessors are:
- A best interests assessor (BIA). This is a registered and experienced social worker, nurse, occupational therapist or clinical psychologist, who has undergone specialist training for this role, and
- A mental health assessor. This is a doctor with mental health expertise and experience, who has also undergone specialist training for the role.
If a person has no relatives or friends for the BIA to consult during their assessment, the supervisory body will also instruct an independent mental capacity advocate (IMCA) who will also visit. Note that they have a right to see the person alone if they wish, and also to see relevant notes, to help them get to know what is important to this person.
For more information on the DoLS process, see SCIE.
Delays in the DoLS process
Since the Cheshire West judgement, the numbers of DoLS applications have been far higher than predicted. This means there may be delays in the local authority supervisory body (the technical name for the DoLS team).
The CQC is aware that providers have no power to speed up processes within the local authority and will not hold you responsible.
However, if the person’s situation has changed since a long-delayed application, especially if the application now seems more urgent than when it was first made, you should discuss this with the local authority supervisory body (the DoLS team). To assess if a situation has become more urgent, it can be useful to use the ADASS Triage Tool.
Court applications for authorisation of a deprivation of liberty
When someone who lacks capacity to consent is deprived of their liberty to give them essential care or treatment, this means the restrictions on this vulnerable person’s freedom to do as they want (their autonomy) are severe. This means the state is under an obligation to protect their basic rights by being sure that these arrangements are in accordance with clearly laid out legal processes, and that the person (or someone acting on their behalf) can challenge the authorisation in a court of law. If they are under 18 or live anywhere except for a registered hospital or care home, DoLS cannot be used. This means that the commissioner or, as a last resort, the local authority, must apply to the Court of Protection for authorisation. The process is laid out in guidance from 39 Essex Chambers.
Note that the court is likely to ask for details of the care plan, and daily care notes; it is helpful if these clearly show determination by the provider to align the care with the person’s wishes and feelings. These documents should show an ongoing desire to reduce restrictions as far as possible. Examples might include ensuring that a former farmer can walk along local footpaths with staff, relatives or friends if necessary) to see how the animals and crops are progressing, or enhancing the knowledge and skills of a young person living with a learning disability or autism to enable them to cross roads safely alone, or to understand about consent in social or sexual relationships.
Any provider must be familiar with the definition of deprivation of liberty. The first step, as in any setting if a person might be deprived of their liberty is to work, with commissioners if relevant, to reduce the restrictions and restraints as far as possible while keeping the person safe. Their relatives or friends are likely to be able to help with ways to avoid the person becoming distressed, and what things make them happy and give them pleasure.
If the care arrangements still amount to a deprivation of liberty, or even if you fear that they might, discuss this urgently with commissioners, to see if they can fund less restrictive options and, if not, for them to consider with their legal advisers whether they or the local authority should apply to the Court of Protection for authorisation.
If these talks break down, or if nobody takes responsibility for the application, discuss this with your legal advisors, who may be able to make clear representations to the commissioners or local authority about their responsibility to act lawfully.
What is the effect of an authorisation?
An authorisation makes it lawful to deprive that person of their liberty, in accordance with the care plan that has been scrutinised either by the DoLS best interests assessor or by someone appointed by the Court, and for the length of time specified. It protects the person’s rights as well as protecting care staff whose actions contribute to depriving this person of their liberty.
There may be conditions attached, such as ensuring the person is taken out at specified intervals. Any conditions are part of the authorisation, so if a provider cannot meet a condition, for example, because the commissioned level of care does not allow it, the provider must discuss urgently with the commissioner and the relevant local authority DoLS team how to proceed.
A lay person, usually a relative or friend but sometimes a paid advocate, will be appointed relevant person’s representative (RPR) under DoLS.
A DoLS authorisation cannot last longer than 12 months and may often be shorter. An order made by the Court of Protection can be of any length. Diarise a month before the end date, for consideration about whether a further authorisation should be applied for.
When you receive the authorisation, and while it is in place, ensure that:
- You read and file the authorisation, together with the forms that underpin it. If you find any errors of fact, contact the DoLS supervisory body that granted it (or the local authority / ISB that applied to the court) urgently; you too are part of this person’s human rights protection.
- Give the person and/or relatives or friends who have been consulted copies of this if they do not have them from the supervisory body.
- Explain to people and their relatives/friends that the authorisation is to protect the person’s rights, so is not any sort of punishment and has no stigma attached. Explain that it gives the person a right to challenge the authorisation to the DoLS supervisory body (DoLS team) or the Court of Protection.
- Staff know about the conditions and keep to them.
- You know and have recorded who is the relevant person’s representative (RPR) or court-appointed representative, and engage with them about how the person is experiencing life under the authorisation.
- Staff understand that an authorisation does not give ‘carte blanche’ to add restrictions or restraints. Although the authorisation means you can lawfully deprive the person of their liberty, you should still always look for the least restrictive options to meet their needs. For example, in many circumstances, the person can go on holiday with their family or go out alone if that is part of their person-centred care plan.
Liberty Protection Safeguards (LPS)
It has been planned for some years that the mechanism for authorising deprivation of liberty in health and social care settings would change, at some time in the future, from the deprivation of liberty safeguards (DoLS), which can only be used when people are in a registered hospital or care home and aged 18 or over, to liberty protection safeguards (LPS). This new system was devised with the intention of being more person-centred and less bureaucratic than DoLS. It was also planned specifically to apply to anybody aged 16 and over, in any setting where they receive health or social care including their own homes.
But, having suffered many implementation delays, this scheme has now been dropped at least until the next parliament.
If and when a date is announced when LPS are due to be implemented, training materials and resources will be resourced by the Department of Health and Social Care (DHSC) and will be provided by the DHSC, Skills for Care, the Social Care Institute for Excellence (SCIE) and Health Education England (HEE). Further information will be provided as soon as anything is known.