DoLs - Deprivation of Liberty Safeguards - Standard Operating Procedure

Publication: 14/02/2014  
Next review: 31/07/2024  
Standard Operating Procedure
CURRENT 
ID: 3737 
Approved By: Executive Team 
Copyright© Leeds Teaching Hospitals NHS Trust 2022  

 

This Standard Operating Procedure is intended for use by healthcare professionals within Leeds unless otherwise stated.
For healthcare professionals in other trusts, please ensure that you consult relevant local and national guidance.

Deprivation of Liberty Safeguards Standard Operating Procedure

  1. Staff Summary & Introduction
  2. Purpose & Effect
  3. Key Definitions
  4. Process Flow Charts & Supporting Information
  5. Key Staff and Committees/Groups

1. Staff Summary & Introduction

The aim of the Leeds Teaching Hospitals NHS Trust (LTHT) Deprivation of Liberty Safeguards Procedures is to clearly state an agreed approach to the adoption and effective implementation of the Deprivation of Liberty Safeguards (DoLS).

DoLS are in addition to, and do not replace, other safeguards in the Mental Capacity Act 2005 (MCA). This means that decisions made, and actions taken, for a person who is subject to a deprivation of liberty authorisation must fulfil the requirements of the MCA in the same way as for any other person.

This procedure assumes a knowledge and understanding of the Mental Capacity Act Procedure and should be read in conjunction with it.

The Deprivation of Liberty Safeguards (DoLS) became law in 2009 to ensure that care and treatment for people unable to consent to such arrangements, is given in the least restrictive regime practical and that their Article 5 Human Rights are not arbitrarily breached.

Deprivation of Liberty occurs when the amount of restriction/restraint used to deliver a patient’s care reaches a point where it meets a legal threshold:

  • The patient is under ‘continuous supervision and control’
  • Is not ‘free to leave’ the hospital (self-discharge)
  • Is unable to consent/refuse both of the above (based on current assessment of mental capacity)
  • All of the above are likely to be needed for a ‘not insignificant’ length of time.

There will be some people who will need to be cared for in circumstances that deprive them of liberty because it is necessary to do so, in their best interests, in order to provide the care or treatment they need to protect them from harm.

In-patient ward staff who are working with patients who lack capacity MUST follow this procedure and the guidance contained within, in order to:

  • Reduce the risk of the unlawful deprivation of liberty of patients
  • Ensure the legal safeguards are in place when needed
  • Evidence compliance with Mental Capacity Act and Human Rights legislation.
  • Protect themselves against legal liability

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2 Purpose and Effect

This set of procedures sets out how Leeds Teaching Hospitals NHS Trust will fulfil its managing authority role under DoLS.

Key responsibilities of the Trust in its role as a Managing Authority:

  • To ensure that care is delivered in the least restrictive way possible that is proportionate to any potential harm to the patient.
  • To ensure that consideration is given to the mental capacity of all patients and their ability to consent to or refuse services which are provided and whether care actions are likely to result in a deprivation of liberty.
  • To ensure staff are aware of the MCA and DoLS legislation.
  • To ensure that Urgent DoLS authorisations and requests for Standard DoLS Authorisations meet the required standard in law.
  • To ensure a new authorisation is applied for prior to the expiry of the current one, where needed.
  • To support patients and their families to understand DoLS and their rights under the safeguards.
  • To maintain records and ensure that all relevant staff are made aware of whether an authorisation is granted or refused.

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3 Key Definitions

The Mental Capacity Act 2005 (MCA)

Provides a statutory framework to empower and protect people who are not able to make their own decisions. There are five statutory principles underpinning the values, purpose and legal requirements of the MCA. It is vital that all clinical staff understand the principles of this Act and its impact on their professional practice as well as on patient choice and consent when their capacity to undertake certain decisions relating to treatment, discharge and safeguarding may be in question. The MCA has a statutory Code of Practice which forms guidance that all health and care professionals must have regard to when making decisions under the Act – MCA Code of Practice

Deprivation of Liberty Safeguards (DoLS)

The Deprivation of Liberty Safeguards are part of the MCA but are supported by a supplementary Code of Practice. The Deprivation of Liberty Safeguards provide legal protection for those vulnerable people who are, or may become, deprived of their liberty within the meaning of Article 5 of the European Convention on Human Rights (ECHR) in a hospital or care home. The Deprivation of Liberty Safeguards require any health or social care organization, to make an assessment and application to ascertain whether they are lawfully depriving of their liberty anyone over 18 with a mental disorder, who is unable to consent to the deprivation.

Deprivation of Liberty (DoL)

a term from Human Rights legislation (Article 5 ECHR) that describes a circumstance when the ‘State’ (including a hospital) confines a citizen to a particular space and severely restricts their freedom without valid consent.

Mental Disorder

means any disorder or disability of the mind. This includes learning disability but not dependence on alcohol or drugs.

Managing Authority (MA)

Managing Authorities are hospitals or care homes that are registered with the Care Quality Commission. Managing Authorities have responsibility for identifying those individuals whose care or treatment may involve a deprivation of liberty and as such they have the responsibility of applying to the Supervisory Body for the authorisation of a deprivation of liberty.

Supervisory Body (SB)

Supervisory Body (SB) is the name given to the Local Authority that can authorise a Deprivation of Liberty. When the SB receives an application for a Deprivation of Liberty they commission a comprehensive six stage set of assessments and it is on the basis of these six assessments they will decide whether to authorise the Deprivation of Liberty. The SB for a patient in an LTHT hospital will be the Local Authority for the place where the patient ordinarily lives.

Best Interests Assessor (BIA)

The person who carries out the Best Interests Assessment (and up to four others) in the DoLS process. A professional, not a doctor, with special experience and training.

Best Interests Assessment

This must be undertaken by the Best Interests Assessor. The purpose of this assessment is:
• To ascertain if a Deprivation of Liberty is occurring or likely to occur and
• To ensure that the restrictions that are being placed on the person are in their best interests, are necessary to prevent harm coming to the person and are the least restrictive method of providing the care and treatment which is deemed to be in someone’s best interests.

Relevant Person

The person/patient who is deprived of their liberty.

Relevant Person’s Representative (RPR)

A person appointed by the SB to support and represent the relevant person during DoLS assessments and during any authorised DoL The RPR will usually be a family member or friend but can also be a paid representative, where the person has no family member or friends to fulfill the role on their behalf

Urgent Authorisation (Form 1)

This permits lawful deprivation of liberty and is issued by a managing authority (e.g. Hospital Ward). It is a short term authorisation (up to 7 days) which can be used only if there is urgent need for the Deprivation of Liberty to begin immediately. It must be followed by an application for a Standard Authorisation

Standard Authorisation (Form 5)

A Managing Authority must request a standard authorisation when it appears likely that, at some time during the next 28 days, someone will be accommodated in its hospital or care home in circumstances that amount of a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights. The request must be made in writing to the SB and a Standard Authorisation must be given within 21 days.

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4 Process Flow Charts (use flow chart titles)

4a How to avoid deprivations of liberty

All care and treatment must be demonstrated to be in line with the principles of the Mental Capacity Act 2005:

  1. A person must be assumed to have the capacity to make a decision unless it is established that they lack capacity to make that decision.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because they make an unwise decision.
  4. An act done, or decision made, under the Act, for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
  5. Before the act is done, or the decision made, regard must be given to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Deprivation of liberty occurs when care is delivered in a way that imposes significant restrictions on a person’s freedom of movement for more than a short period and there is no valid consent to do so. (see DoLS ‘test’ below at 4c)

In a hospital setting there is an increased risk of deprivation of liberty occurring because we may use a significant level of restraint/restriction in order to safely deliver care - E.g locked wards, bedrails, mittens, sedation (including analgesia and anaesthesia), enhanced supervision etc.

4b Steps to reduce the risk of deprivation of liberty occurring

There are several ways in which staff can reduce the risk of taking steps that amount to a deprivation of liberty:

  • By minimising the restrictions and restraints imposed on a patient and the length of time they are used.
  • Ensuring that decisions are taken with the consent of the person (as far as possible) and the involvement and agreement of their family, friends, representatives and carers.

These practical steps should include:

  • Be confident and competent in identifying any restraints/restrictions and the reason for using them. Staff should make sure they are following LTHT Policy on the use of Restraint and the documentation within its guidance.
  • Ensuring that all restraint measures that are necessary are reviewed regularly, in a structured way, and reasons for decisions recorded.
  • If a patient lacks capacity to consent, then this assessment should be recorded using the PPM+ mental capacity assessment clinical document.
  • Where restrictive interventions/restraint is used without valid consent, then it must be evidenced as necessary, proportionate and in the person’s best interests using the Restraint Care plan Bundle to evidence proportionality and daily review.
  • Any restrictions placed on the person while in hospital must be kept to the minimum necessary and should be in place for the shortest possible period.
  • Steps should be taken to ensure that the person retains contact with family, friends and carers – unless there are exceptional reasons to the contrary, which should be recorded.
  • Reviewing the care plan regularly, with input from an independent professional or as part of multi-disciplinary team – to ensure objectivity.

4c How to identify potential deprivation of liberty

STAFF MUST USE THE FLOWCHARTS AND GUIDANCE IN APPENDIX 1 TO DETERMINE WHEN IT IS NECESSARY TO MAKE A DoLS APPLICATION.

Sometimes, even when following the guidance above, it is likely that a significant number of restrictions/restraint are used to deliver safe, effective care/treatment in a patient’s best interests;

  • For example, a confused/delirious patient requiring intravenous antibiotics for severe sepsis may require short term use of significant restrictions to deliver treatment safely.

The Mental Capacity Act (MCA) Section 6 provides legal protection for staff using restrictive interventions/restraint in such circumstances for short periods if it is necessary and both to the risk and likelihood of harm that would otherwise occur.

The point where restraint/restriction (protected by the MCA 2005) becomes a deprivation of liberty, needing a different legal authorisation (by applying for DoLS), is one of intensity and duration.

  • Duration: If low levels of restraint are to continue consistently for several days at a time, then it is likely to be a Deprivation of Liberty, even where the patient is compliant / not attempting to resist or leave the ward.
  • Intensity: if high levels of restraint, or a single intense restraint measure is used (such as 1:1 arms-length supervision or rapid sedation) for a shorter period and the person is actively resistant or demonstrating their resistance, then it is likely to be a deprivation of liberty because of the impact it is having on them.

The specific legal definition of what amounts to a deprivation of a person’s liberty was clarified by the Supreme Court in 2014.
This is often described as the ‘ACID TEST’ for DoLS:

  1. Does the Patient lack the capacity to decide on whether to be accommodated in hospital under the restrictions proposed?
  2. AND are they ‘not free to leave’?
  3. AND do the Restrictions/Restraint used in their best interests, amount to ‘continuous supervision and control’?
  4. AND are all 3 above likely to be the case for a ‘not negligible length of time’

For every inpatient who lacks capacity to decide on such arrangements we should think about the following questions:

  • Do you believe that the care and/or treatment is in the person’s best interests?
  • Does the care and/or treatment being provided take away the person’s freedom to the extent that they are being deprived of their liberty?

If the answer to both questions is ‘yes’ or ‘probably’, we need to ask:

Can the treatment or care be given in a way that does not take away the persons liberty?

If the answer to this is ‘no’, the person cannot be cared for in any other way, an application for a DoLS may be needed if the restrictions/restraints are likely to be needed for more than a few days.

4d When can DoLS not be used?

Having identified that a patient is being deprived of their liberty (because of the amount and duration of restrictions imposed to keep them safe) you now need to decide whether the DoLS are the right legal framework.

Although anyone could be deprived of their liberty, DoLS cannot be used to authorise the deprivation if:

  • The patient is under 18 – clearly patients under 18 yrs may be treated in hospital in circumstances that amount to a deprivation of their liberty; however, the current DoLS Safeguards only apply from the age of 18.

16/17 year olds Parental consent to accommodation/care arrangements in hospital is not sufficient to prevent it being a deprivation of liberty for a patient aged 16 or 17. This position was clarified in 2019 by the Supreme Court - D (A Child) 2019 UKSC 42.

This means that deprivation of liberty of a 16/17 years old patient who lacks capacity to consent may require authorisation through the courts, until such time as the new Liberty Protection Safeguards come into force. This scheme will accommodate 16/17 year olds.

0-15 year old patients

The MCA does not apply to this age group. However, it is not clear that a parent’s consent to restrictions/restraint mean that a deprivation of liberty is avoided. Seeking and documenting parental consent is still vital but should not solely be relied upon in circumstances where there are significant restrictions imposed. The views and competence of the child should also be sought and recorded and advice sought as below.

If a patient aged under 18 is deprived of their liberty please seek advice from LTHT MCA/MHA team as legal advice and occasionally an application to court may be required.

  • If they do not have a Mental Disorder - any disability of mind. E.G a person withdrawing from alcohol may lack capacity to consent and be deprived of liberty but you cannot use DoLS.
  • The DoLS would be counter to the decision of a valid and relevant LPA or Advance Decision to Refuse Treatment.
  • If the patient is already detained or is within the scope of the Mental Health Act - ’sectioned’ or the primary purpose of the deprivation of liberty is for treatment for mental disorder that could be regulated under Part 2 MHA 1983.
  • Life-saving treatment – any deprivation of liberty resulting from the delivery of life-saving treatment falls outside Article 5 and thus does not require a DoLS application; so long as the treatment is materially the same as would be given to a patient in the same circumstances but who did not have a mental disorder.

4e How to apply for DoLS

STEPS

Procedure to follow

Person responsible

STEP 1

Is there a Deprivation of Liberty?
First you need to determine if the restrictions/restraint used amount to a deprivation of liberty. Use the information in 4a, 4b and 4c above to guide you.

You should follow the flowcharts in the Appendix 1 - or guidance on the intranet, to help you work out whether the restrictions on the patient amount to deprivation.

For a DoLS to be needed you must be satisfied that each element of the following legal threshold is met:
This is often described as the ‘ACID TEST’ for DoLS:

  1. the Patient lacks the capacity to decide on whether to be accommodated in hospital under the restrictions proposed?
  2. AND are they ‘not free to leave’?
  3. AND the Restrictions/Restraint used in their best interests, amount to ‘Continuous supervision and control’?
  4. AND are all 3 above likely to be the case for a ‘not negligible length of time’

Seek advice about each case from:
LTHT MCA/MHA Team - ext 65011 / mca.mha@nhs.net

Outside office hours you can get advice from Clinical Site managers.

Nurse in charge or Doctor

STEP 2

Is there valid consent for the deprivation of liberty?

A key element is judging whether the patient lacks capacity to consent to being in hospital and the arrangements in place.

You must follow the 2 stage test of mental capacity for this and for DoLS you should record this on the PPM+ mental capacity assessment clinical document.

Nurse in charge or Doctor

STEP 3

Consulting and Completing the DoLS application:

If you are clear that the Patient cannot consent and that the restrictions in place amount to continuous supervision and control AND that this is likely to be the case for several days:

What you need to do now is:

  • Complete the application Form 1. Please use the latest version of FORM 1 by clicking on the link or going to the MCA/MHA Intranet site.
  • Consult with patient and relevant family about the DoLS application and why it is needed.

You should complete the Form 1 as Word document so that it can be emailed as an attachment – see STEP 4 below

Make sure all boxes on the form are complete, read the questions before completing it and sign it in each signature box (page 4 and 6).

A valid application requires sufficient and accurate information on all pages of the form.

Nurse in charge or Doctor

STEP 4

Send DoLS Application for triage:

  • You must then send the completed Forms to LTHT MCA/MHA team: Secure email: mca.mha@nhs.net;
  • DO NOT upload the Form direct to the patient’s PPM+ record. This will be done by MCA/MHA Team once the Form 1 is triaged

Nurse in charge or Doctor

STEP 5

Triaging your DoLS application:

When LTHT MCA/MHA team receive the DoLS Form 1 it will be reviewed the same day or the next working day (except for weekends).
Depending on the information on the Form 1 we will:

  • Ask you for more / missing information
  • Advise on whether DoLS is appropriate in the circumstances.
  • Send it on to the relevant Local Authority (‘Supervisory Body’) for assessment and authorisation.
  • Once the DoLS Form 1 is ready to send on to the Local Authority and the Urgent Authorisation is therefore in place; We will send on to the relevant Local Authority DoLS team and upload the form onto PPM+ .
  • The MCA/MHA team will also complete an MCA/MHA advice note on PPM+ confirming that the DoLS application has been sent and confirming the start and finish date of the Urgent Authorisation.
  • The MCA/MHA advice note will also contain advice and links to important information leaflets to share with patient/relevant family members.

LTHT MCA/MHA team

STEP 6

Liaising with LTHT MCA/MHA team:

It is essential that you work closely with LTHT MCA/MHA team during the DoLS process and accurately record key information in the patient record. The team have provided template DoLS recording sheets for this purpose - APPENDIX 2

LTHT MCA/MHA Team will contact you in the following ways:

  • By email / phoning direct to nursing staff
  • A team member may attend the ward to support you
  • Key information about the DoLS will be recorded on an MCA/MHA Advice note on PPM+
  • Standard DoLS Forms will also be scanned onto the patient’s PPM+ record

Nurse in charge or Doctor

STEP 7

Ward staff duties once the Urgent Authorisation is confirmed and you are waiting for the Local Authority assessments.

Once the LTHT MCA/MHA team have confirmed the Urgent Authorisation is in place:

  • You have a duty to inform the patient, their representatives, family and carers of the decision to apply for DoLS and the reasons for it.
  • You have a duty to explain what the Urgent Authorisation means and how long it is in place for.
  • As with all DoLS and MCA activity, this should be recorded clearly in the patient record. We would recommend using the separate DoLS recording sheet for all recording relating to DoLS.

Nurse in charge or Doctor

STEP 8

IMCAs and DoLS Assessors
If the patient does not have any appropriate family/friend to represent them, the Supervisory Body (Local Authority) will appoint an Independent Mental Capacity Advocate (IMCA) under section 39A of the Act, who will then support the patient during the assessment process.

The Supervisory Body will also appoint at least 2 Assessors - a Best Interest Assessor and a Mental Health Assessor to complete the 6 areas of DoLS assessment:

  • Age Assessment
  • Mental Capacity Assessment
  • No Refusals Assessment
  • Eligibility Assessment
  • Mental Health Assessment
  • Best Interests Assessment

IMCAs and DoLS Assessors involved with the patient will have a right to:

  • Have an interview in private with the person who lacks capacity,
  • Examine, and take copies of, any records that are relevant to their role/the DoLS (for example, clinical records, care plans, social care assessment documents or care home records).
  • If you are unsure on what documentation is covered by this section, please seek advice from LTHT MCA/MHA Team.

Ward staff duties regarding IMCAs and Assessors

  • IMCAs and Assessors should be asked to provide ID
  • They should be asked to record their visits and relevant information in the patient record or DoLS recording sheets.

Nurse in charge or Doctor

STEP 9

Monitoring a Deprivation of Liberty after application

Once you have applied for a DoLS and granted yourselves an Urgent Authorisation then the DoLS assessments (described above at Step 8) should begin.

During this period you have the legal authority to continue with the restrictions on the patient as long as:

  1. They continue to be necessary and proportionate to the harm that would otherwise occur to the patient
  2. They continue to be the least restrictive option that would prevent that harm
  3. The patient continues to lack the capacity to refuse such restrictions.

In other words, you should only continue to deprive the patient of liberty for as long as it is necessary.

LTHT Restrictive Intervention/Restraint Care Plan should be used for all patients who cannot consent and for whom a range of restrictions/restraint are being used – this would include most patients subject to a DoLS application.

This care plan provides the evidence that the restrictions remain necessary and proportionate and in the patient’s best interests.

STEP 10

What if we have not had the deprivation of liberty authorised? (Standard Authorisation)

Frequently Supervisory Bodies are not able to complete the assessments within the period of your Urgent authorisation because of the volume of DoLS applications.

If you have applied for a DoLS and have not had the results of the assessments within the relevant 14 day period, it is vital that you:

  • Monitor the patient and the restrictions daily as an MDT, to ensure that the restrictions are still needed.
  • Record in the patient record that this has been reviewed and that the restrictions amounting to DoLS are still necessary and in the patient’s best interests.
  • Make sure that any representatives/ family / carers are consulted and continue to agree with restrictions in place
  • Liaise with LTHT MCA/MHA team if the patient / or family raise concerns about the continued restrictions.
  • LTHT MCA/MHA team send a weekly escalation email to the Supervisory Body for all outstanding DoLS applications; so it is vital that you contact us with any change in circumstances (such as patient or family expressing concerns, increased restraint/restrictions needed).
  • In extremely urgent or concerning situations we may even consider an application to the Court for authorisation.

4f What must ward staff do once a DoLS is authorised?

Not every assessment process will lead to a DoLS being authorised.

LTHT MCA/MHA team will:

  • Notify you as soon as we know the outcome (DoLS Granted or Not Granted)
  • Upload the relevant Documentation from the Supervisory Body onto the patient PPM+ record (FORM 5 authorisation or FORM 6 ‘Not Granted’)
  • Complete an MCA/MHA advice note with key information
  • Upload guidance relating to your duties below

Once a patient is subject to a DoLS Standard Authorisation, the Supervisory Body (Local Authority) must appoint a Relevant Person’s Representative (RPR) to represent the patient’s interests.
This is usually a family member but could be a paid professional if an appropriate family member is not available.

Ward staff must liaise closely with the Patient, RPR and any IMCA during the authorisation and must:

  • Ensure that the patient and RPR understand the effect, conditions and time scales of the DoLS. (all this information is on the Standard Form 5)
  • Ensure that the patient and their RPR understand their right to request a Part 8 Review,
  • Ensure that the patient and their RPR understand their right to apply to Court of Protection under Section 21A.
  • Ensure that the patient and their RPR understand their right to access an IMCA (if the RPR is an unpaid person).
  • Monitor that RPR has regular contact with the patient.
  • Record visits by RPR and any IMCA.
  • Record any contact made by the RPR, any IMCA and relatives and record their comments and/or views regarding the person’s case. This should be recorded in the patient’s health records or DoLS recording sheet.
  • Facilitate visits by RPR and IMCA at reasonable times and support private meetings between RPR, IMCA and patient wherever possible.

LTHT MCA/MHA Team will upload a DoLS patient’s rights leaflet onto the patient’s PPM+ to support these duties.

4g Requesting a review of a DoLS or removing it

Ward staff must:

  • Check regularly to see if the DoLS is still necessary.
  • The ward must request a review if it appears that one or more of the qualifying requirements for a DoL are no longer met. For example, the patient may have regained capacity to decide, or it may no longer be in their best interests to remain in hospital.
  • Apply for a new DoLS authorisation if likely to be necessary, at least 2 weeks before the current DoLS ends.
  • Ensure that all staff are following any conditions written on the Form 5 Standard Authorsation.

Alert the LTHT MCA/MHA team as soon as the patient under DoLS:

  1. Is discharged
  2. Moves from one LTHT site to another
  3. Dies
  4. No longer requires the DoLS authorisation

NOTE: a deprivation of liberty can be ended before a formal review. If a managing authority (Ward/ MDT) decides that a deprivation of liberty is no longer necessary then they must end it immediately, by adjusting the care regime or implementing whatever other change is appropriate.

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5 Key staff and committees/ groups

Chief Nurse- The Chief Nurse (LTHT) is the Executive Lead for this Procedure and the Mental Capacity Procedure. They have responsibility to ensure that Clinical Services are suitably established to provide treatment under the Mental Capacity Act, and DoLS procedures.

Head of Mental Health Legislation - is the operational lead for this procedure and is the author of this procedure. They are the delegated operational lead for Mental Capacity Act and Deprivation of Liberty Safeguards. Their role includes all of those below for Lead Professional but also links to the Executive Team via the Director of Nursing (Corporate) regarding matters to do with Mental Health Legislation.

Lead Professional for MCA/MHA / Nurse Advisor MCA/MHA - are responsible for providing advice on any aspect of the application of this procedure. They are also responsible for:

  • Triaging DoLS applications from wards and liaising on applications.
  • Supporting and advising ward managers, ward staff and senior managers on matters relating to DoLS.
  • Developing and delivering/facilitating access to training on DoLS and MCA for all relevant staff groups on LTHT sites.
  • Overall coordination of the DoLS process in the Trust.
  • Liaison with the Supervisory Body regarding DoLS issues escalated to them.
  • Liaison with the IMCA provider.
  • Representing LTHT at relevant strategic networks/meetings.
  • Liaison with clinical staff regarding the awareness and implementation of this procedure.
  • Overseeing the maintenance of a Trust record of authorisations and applications.
  • Providing quarterly reports on DoLS applications and authorisation.
  • Providing other quality assurance and audit information as required.
  • Developing guidance and training specific to this procedure and all other aspects relating to the Mental Capacity Act 2005 affecting the acute hospital setting.

LTHT MCA/MHA Administrator - sits in the LTHT MCA/MHA Team. Their role is to:

  • Receive and allocate DoLS application forms (FORM1) from wards daily and collate for triage.
  • Open a separate file for each patient for whom an application is made as required by DoLS Code of Practice.
  • Forward DoLS applications to relevant SB in timely manner.
  • Ensure all relevant DoLS forms and guidance notices / leaflets are communicated to relevant people - patient/family/ RPR / wards.
  • Update and maintain DoLS data / Spread sheets.
  • Produce quarterly data for reporting.
  • Receive and appropriately disseminate all relevant standard forms from DoLS Assessors and SB.
  • Notify the Care Quality Commission of all Authorised and Not Granted DoLS applications
  • Liaise with ward staff to ensure that all relevant forms/documents are in patient records.
  • Communicate key information from the MCA/MHA team to ward staff using secure email account and MCA/MHA Advice notification system on PPM.
  • Run a DoLS chronology register (Calendar) for each DoL on LTHT sites and liaise with wards about key dates and actions – review dates etc.

Senior Ward Staff (Sisters, Charge Nurse, Nurse in Charge, Doctors):

  • Consider, before admitting a person to a Ward in circumstances that may amount to Deprivation of Liberty, whether the person’s needs could be met in a less restrictive way. To ensure that any restrictions are the minimum necessary and in place for the shortest possible period.
  • Access relevant training to ensure that they are competent and confident to complete DoLS applications accurately and completely.
  • Take steps to help the patient retain contact with family, friends and carers.
  • Where local advocacy services are available, their involvement should be encouraged to support the person and their family, friends and carers.
  • Ensure clear and robust procedures are in place for staff in their ward areas (by following this procedure).
  • Offer guidance and clarity on when a request for a Standard and/or Urgent Authorisation would be required, and the procedures that should be followed in order to make an application to the SB.
  • Ensure that no person, except in unpredictable circumstances, is deprived of their liberty without a DoLS application being made.
  • Apply for DoLS Authorisations by completing the appropriate DoLS FORM 1 in an accurate and timely manner and sending them to the LTHT DoLS Administrator.
  • Are responsible for writing and implementing specific DoLS Care plans for each patient for whom DoLS applications are made as required by the Code of Practice.
  • Ensure compliance with any conditions attached to the authorisation (FORM 5 authorisations)
  • Ensure that applications for authorisation are not made as standard for all admissions to hospitals simply because the relevant person lacks the capacity to decide whether to be admitted. The referral process should be used appropriately and only when it is genuinely necessary for a person to be deprived of their liberty in their best interests.
  • Ensure there is effective communication with the Relevant Person (Patient), their Representative and family, LTHT MCA/MHA Team, Assessors, any IMCA, and Supervisory Body; both during the assessment process and post authorisation.
  • Monitor whether the relevant person’s representative maintains regular contact with the person.
  • Are responsible for responding to staff members and others who suggest that a Deprivation of Liberty Safeguards application may be required on behalf of a patient.
  • Are responsible for making enquiries about possible deprivation of liberty situations on their ward areas and seeking advice when necessary.
  • Are responsible for ensuring that ward staff are aware of and care plans are compliant with:
    1. Any conditions attached to an authorised DoL
    2. Monitoring of any existing Deprivation of Liberty authorisation
    3. Need for any new application for a DoL
  • They will have overall responsibility to ensure that all DoLS and MCA decisions and activity is recorded appropriately in patient records and that all DoLS administration required at Ward level is complete and filed together in patient records.
  • Review the care plan on an on-going basis, giving consideration to whether less restrictive measures are possible or whether any element of a DoL is reviewable. It should be noted that Deprivation of Liberty can be ended before a formal review.
  • Ensure that accurate and succinct records are maintained on the Ward.
  • Inform the Consultant under whose care the patient is being treated, of any MCA or DoLS information.

Clinical Site Managers, On-Call Heads of Nursing, Matrons:

  • Should have sufficient knowledge of these procedures and the MCA to act as above when needed out of hours.
  • To support ward staff when escalated to.

All Clinical and Ward Staff in Inpatient Areas

  • Must ensure that they know how to assess a patient’s mental capacity using the 2 stage test as laid out in Mental Capacity Act 2005.
  • Staff must appraise themselves of this Standard Operating Procedure and the requirement to assess restraint/restrictive practice for any patient who lacks capacity to decide on/consent to aspects of their care/treatment.
  • Must use the guidance provided here in order to gauge whether the restrictions/restraints being implemented may amount to deprivation of liberty.
  • Must bring to the attention of Ward Sisters/Managers/Nurse in Charge whenever they think that a patient may be being deprived of their liberty; or that the circumstances for a patient under a DoLS have changed.
  • Must pass on to Ward Sisters/Managers/Nurse in charge when a patient, family, advocate or other person expresses concern that a patient might be being deprived of their liberty.
  • Adapt care planning processes to ensure consideration is given to whether a person has the capacity to consent (in accordance with the Mental Capacity Act 2005) to the services which are to be provided and whether their actions are likely to result in a deprivation of liberty.
  • Identify the restraints/ restrictions in place for the patients in their care and to identify any ways in which these can be reduced and bring these to the attention of senior ward staff.

Staff should be confident in assessing decision making capacity and using guidance to determine if a DoLS application is needed.

Provenance

Record: 3737
Objective:
Clinical condition:
Target patient group:
Target professional group(s): Secondary Care Nurses
Secondary Care Doctors
Adapted from:

Evidence base

  • HM Parliament, Mental Capacity Act 2005 (c. 9) SCHEDULE A1 – Hospital and care home residents: deprivation of liberty.
  • HM Parliament, Mental Capacity Act 2005 (c. 9) SCHEDULE 1A – Persons ineligible to be deprived of liberty by this Act.
  • Department of Health (2009), Deprivation of Liberty safeguards - a guide for hospitals and care homes (OPG608), London
  • Department of Constitutional Affairs (2007), Mental Capacity Act Code of Practice, London
  • Department of Health, The Mental Capacity Act 2005: Deprivation of liberty safeguards - Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice, August 2008.
  • The Information Centre, Mental Capacity Act 2005: Deprivation of Liberty Safeguards Assessments (England). reports on annual data.
  • The Mental Health Alliance, Deprivation of Liberty Safeguards: an initial review of implementation, July 2010.
  • The Human Rights Act 1998
  • TMBC and Tameside PCT (2009), DoLS Policy & Procedure.
  • Care Quality Commission (Registration) Regulations 2009 and DoLS annual Reports
  • Health and Social Care Act 2008 (Regulated Activities) Regulations 2010
  • Mental Health Act (1983) as Amended (2007). TSO: London
  • Mental Health Act Manual 14th Ed (2013). Sweet & Maxwell: Cornwall
  • Mental Capacity Act Code of Practice
  • Deprivation of Liberty Code of Practice.
  • HL v the United Kingdom - 45508/99 [2002] ECHR 850 (10 September 2002) and [2004] ECHR 720 (5 October 2004), Council of Europe.
  • Re MIG and MEG (2010) EWHC 785 (Fam), Mental health law online
  • London Borough of Hillingdon v Neary & Anor [2011] EWHC 1377 (COP)
  • Re P and Q; P and Q v Surrey County Council; sub nom Re MIG and MEG (2011) EWCA Civ 190, Mental health law online
  • G v E and others (2010) EWHC 621 (Fam). http://www.bailii.org/ew/cases/EWHC/Fam/2010/621.html .
  • Cheshire West and Chester Council v P & Anor [2011] EWHC 1330 (COP), http://www.bailii.org/ew/cases/EWHC/COP/2011/1330.html
  • P v Cheshire West and Chester Council and another (Respondents); P and Q) v Surrey County Council (Respondent) [2014] UKSC 19

Approved By

Executive Team

Document history

LHP version 3.0

Related information

Appendix 1 - Identifying if there is a Deprivation of Liberty (DoL)

 Guidance Note 1 - ‘Continuous supervision and control'

It is vital to identify ALL the restraints and restrictions in place for the patient. Restraint is defined in law as:

‘using force – or threaten to use force – to do something that they are resisting, or
restricting a person’s freedom of movement, whether they are resisting or not.’

This means that routine interventions such as Bedrails, mittens, enhanced supervision, locked ward doors, sedation or simply telling a patient they will be prevented from leaving the ward on their own ARE all restraint measures.

‘continuous supervision and control’ is measured by looking at the patient’s care plan overall and asking:
Are there lots of small restraint measures which combined amount to ‘continuous supervision and control’?
Is there just one or two restraints being used but for an intense / long time e.g. mittens 24/7 or consistently for days?
Overall are we in control of where the patient goes and how long for?

 Guidance Note 2 - Valid consent

If the patient lacks capacity to consent/refuse the restrictions in place that amount to a deprivation of their liberty, then nobody else can provide valid consent in their place.

  • Lasting Powers of Attorney/Court appointed Deputies cannot consent, whilst they can consent/refuse treatment and care, cannot consent to restrictions that would otherwise be a deprivation of liberty – dols would still be required in such cases.
  • 16/17 year old patients: Parent / Person with Parental Responsibility cannot consent to arrangements that would otherwise amount to a deprivation of liberty. Authorisation for the deprivation would still be needed even where parents agree with the restrictions. This might mean seeking authority from the courts (as the current DoLS process does not accommodate 16/17 year olds)
  • 0-15 year olds: MCA dos not apply to this age group but they may subject to restrictions that amount to a deprivation of liberty. It is unclear (untested in court) whether a parent’s consent to restrictions/restraint would avoid it being a deprivation of the child’s liberty. Whilst this might sit within the normative zone of parental responsibility for very young children, it is less clear that there is ‘bright line’ divide between 16 year olds and 14/15 years old for example. In practice this means that if you are depriving a patient of their liberty who is 0-15, you should record the consent for the deprivation (restrictions/restraint) by the person with Parental Responsibility, your assessment of the child competence to make such decisions, the views of the child and seek advice as above.

Guidance Note 3 - duration of restrictions and their setting

DoLS is about authorising the on-going use of restraint/restrictions that may breach Article 5 Right to liberty in Human Rights law. DoLS is not designed to authorise short periods of restraint or restriction. The Mental Capacity Act section 6 authorises you to take actions for a patient who lacks capacity in their best interests, including restraint that is proportionate to protect them from harm.

If you as an MDT believe that the restrictions/restraints are only likely to be needed for a few days (e.g. post-surgical delirium or drug detox where the situation may be very different in a few days), then there is no need to apply for DoLS.

Equally in many patients whose incapacity has coincided with the illness that has caused them to come into hospital, their incapacity is clinically explicable by their physical illness. On recovery from their illness, they would be expected rapidly to recover their capacity. In this patient group, you do not need to make an automatic DoLS application.
The DoLS process can take some time, once an application is sent to the council; and the Code says that you should only grant yourself an Urgent DoLS authorisation (page 6 of the Form 1) if you believe a Standard DoLS will be needed.
So for patients whose initial presentation to hospital might mean they lack capacity and need significant restraint, but whose situation is likely to change quickly, we would suggest recording your capacity assessment and best interests decision robustly (using LTHT MCA Procedure) and review the situation regularly rather than completing a DoLS application that may not be needed by the time it is processed/assessed.

ICU - A key Court Case (R Ferreira v HM Coroner) has determined that if treatment for a physical illness in, an emergency/life sustaining treatment situation, is the cause of incapacity and the restrictions, then there is no need to apply for DoLS.
This means that we would not expect automatic DoLS applications from Intensive Care settings or for life sustaining treatment in an emergency.

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APPENDIX 2

DoLs Recording Sheet

Equity and Diversity

The Leeds Teaching Hospitals NHS Trust is committed to ensuring that the way that we provide services and the way we recruit and treat staff reflects individual needs, promotes equality and does not discriminate unfairly against any particular individual or group.