ADASS provides the following guidance to Councils in their role as the supervisory body for the Mental Capacity Act Deprivation of Liberty Safeguards. A revised full set of the DoLS forms are now finalised on Gov.UK. These forms should be returned to your Local Authority. Contact your LA for more information.
This guidance has been reviewed following the AJ v A Local Authority judgement, please see summary. This judgement places a significant burden on Councils to make sure that those people who are deprived of their liberty in both care homes and hospitals have effective access to the Court of Protection. The judgement made a number of important points summarised below but which should be read in full.
1. In most cases it should be possible for a Care Home or Hospital to apply for a standard authorisation ahead of the deprivation of liberty occurring and the use of Urgent authorisations are for exceptional cases.
2. The judgement warns professionals to be looking out for those people who are admitted to residential care ostensibly for respite when the intention is that the placement should be permanent.
3. BIA’s are expected to check and confirm the eligibility of those selected as Relevant Persons Representatives, ensuring that they would support the person with an application to Court where needed.
4. The supervisory body must also be certain that the RPR is appropriate to be selected and if they are unsure they would support the person to challenge the authorisation they should refer back to the BIA.
5. It is likely to be difficult for someone who is a close relative or friend, who has supported the move into residential care to then act as RPR which may involve them in supporting a possible challenge to the Standard Authorisation.
6. Any IMCA appointed to support the person or their RPR must also act speedily to support them in taking matters to Court if the person is objecting to the deprivation of liberty.
7. The local authority as supervisory body must monitor whether the RPR is supporting the person and must also ensure any IMCA appointed is supported in the role and takes all necessary steps to uphold the persons Article 5 rights.
8. If both the RPR and an IMCA fail to take matters to Court to challenge the authorisation then the local authority should consider taking the matter to court itself. This is likely, however, to be a last resort since in most cases this should be achieved by a properly selected and appointed RPR and an IMCA carrying out their duties.
For further guidance on applying to the Court of Protection to challenge an existing authorisation of a Deprivation of Liberty in a care home or hospital or to seek authorisation for a deprivation of liberty in other settings, please see the Government website here.