1. Mental Capacity Act 2005 and Deprivation of Liberty Safeguards
Provider sessions
Amy Allen/Robert Barton
DOLS manager

2. Deprivation of Liberty – overview of law
There has been a right to liberty for many years and a requirement to authorise situations that deprive someone who lacks capacity to consent to their care regimes
However, case of Cheshire West brought deprivation of liberty into the limelight because it has broadened the scope of what is and what isn’t a deprivation.

3. Cheshire West
Acid test for deprivation of liberty applying in all care settings:
The person is not free to leave
They are under continuous supervision and
They are under continuous control
All 3 elements of the test must be met for there to be a deprivation of liberty. There are no definitions or any further explanation of what each of these 3 elements mean.
What exactly does “continuous supervision and control” mean? Does this imply having P under direct line of sight observation at all times, or could this be intermittent but with staff under an obligation to be ready and willing to intervene/control if needed? When does support with everyday living become control? What wriggle room is there for deciding restriction of movement rather than dol?
P can have a fair degree of freedom of movement within and even including (with permission) leaving the institution for short periods unaccompanied, and yet still be regarded as being under continuous supervision and control.
If the person responsible for the care has a plan in place which means he always needs to know where the incapable person is and what he is doing at any one time
What does not being “free to leave” mean? - “in the sense of removing himself permanently in order to live where and with whom he chooses”....
The question does not turn on whether P is actively seeking to leave or passively remaining, but on whether if he purposefully attempts to leave he will be prevented from so doing. Where does the power lie?

4. Cheshire West
Factors no longer relevant in determining if there is deprivation of liberty:
Compliance or lack of objection
Relative normality of the placement in comparison with a person of similar condition or disability
Purpose must be to provide care or treatment
The purpose of the placement and the purpose of the restrictions will feed into the best interests process, but are no longer relevant when deciding if there is a deprivation of liberty in the first place.

5. Examples of potential deprivation of liberty
Using key pads or locking doors
Close supervision inside and out
Medication –including covert meds
Restricting contact with others
Having to stay somewhere against wishes of family member
Holding a person to give personal care
Bedrails, wheelchair straps
Removing items that could cause harm
One of these points will not necessarily equal a deprivation of liberty. There will normally need to be a combination.

6. What information is required?
In all cases it is important to be clear that you believe P lacks capacity to consent to care arrangements.
Give details of the care provided e.g. support and assistance with all personal care, administration of medication, incontinence management, support to prevent risk of falls.
Give details of the restrictions e.g. 2 carers for personal care, observed every 30 mins, not free to leave without permission, supervised 1:1 inside and out in the community
Details of covert medication, if any
Use new Form 1 – joint urgent and standard request

7. National picture Oxfordshire receiving c1500 requests per year
Allocation list is prioritised according to risk
Providers need to keep DOLS office informed of any change in circumstances – admission to hospital, death, discharge to another location, increase in restrictions, change in presentation

8. Changes in circumstances
Request submitted and awaiting assessment. If admitted to hospital for up to 2 weeks and resident then returns with no change in circs – no need to request a new DOLS
If DOLS in place and admitted to hospital, auth ends, new request must be submitted. We will take a view on reusing papers without the need for additional assessments
MA MUST TELL DOLS OFFICE IN WRITING

9. Some case law developments
Covert medication - medication given without consent or covertly must always call for close scrutiny
It is a best interests decision and must be recorded appropriately in line with NICE and CQC guidance
Written evidence of consultation with family, and agreement of GP, ideally a covert medication care plan
Plan must be reviewed regularly by the managing authority and at any change in circumstances e.g. change of dose, change of meds, change in presentation
See 2 articles for further detail

10. Other developments
Coroner notification changes – a DOLS authorisation is no longer considered to be ‘state detention’ therefore no requirement for Coroner to hold an inquest.
As has always been the case, where the cause of death is unknown or is unnatural (including where there is any concern that the care given may have contributed to the death) there is a requirement to report such a death to the coroner.

11. Law Commission proposals for MCA and DOLS
Report published March 2017 on proposed amendments to MCA and DOLS
At this stage they are only proposals and we await a response from Government
In summary:
Replace DOLS with ‘Liberty Protection Safeguards’
Responsible body (hospital, CCG or Council) will identify potential DOL

12. Law Commission proposals for MCA and DOLS
For self funders, care home maintain responsibility for notifying Council
For state funded residents, the expectation is for authorisation to be in place prior to admission
Urgent authorisation replaced with express authority to deprive of liberty in emergency situations.
2 assessors – mental health, mental capacity and ‘proportionality’ assessment
Wider scope for using existing assessments to prevent duplication
Much more focus on forward planning

13. Law Commission proposals for MCA and DOLS
Same authorisation process for all settings (no need to apply to Court for supported living)
Authorisation record can travel with the person to cover multiple settings, and the conveyance.
Age reduced to 16+
Ability to authorise for up to 3 years after initial 12 month period.
Changes to BIA role – independent reviewer and Approved Mental Capacity Professional
Respite
When AMCP will become involved.

14. Law Commission proposals for MCA and DOLS
Amendments to MCA
Active duty to give weight to person’s wishes
Increased requirements in relation to care plans and how best interests decisions are recorded

15. Where to go for advice
Oxfordshire County Council DOLS Team Tel: Fax: Gov.uk website Mental capacity pages SCIE MCA directory