Human Rights legislation determines that everyone has a right to freedom and liberty. In certain circumstances, however, people who are assessed as lacking capacity can be deprived of their liberty under the Mental Capacity Act 2005 if necessary.
In the UK this procedure is known as the Deprivation of Liberty Safeguards (DoLS). The Safeguards can apply to anyone over the age of 18 years old who resides in a hospital or care home and who lacks mental capacity to make decisions regarding their care.
On 19 March 2014, the Supreme Court published its judgment in the case of "P v Cheshire West and Chester Council" and "P and Q v Surrey County Council". The judgment introduced an 'acid test' to determine whether people (who have been assessed as lacking capacity to consent to their care and treatement) are being deprived of their liberty.
The 'acid test' for when to consider DoLS
In all cases, the following are not relevant to the application of the test:
If a person is receiving care - arranged by the local authority - in a supported living environment or similar domestic situation and are, in their best interests, being deprived of their liberty, then the Council's Supervisory Body will apply to the Court of Protection for authorisation of the deprivation.
There are two types of authorisation:
These can be made by the Managing Authority (the Hospital or Care Home) and can last up to seven days to allow for assessments for a standard authorisation.
For the giving of an urgent authorisation by a managing authority. If a managing authority needs to give itself an urgent authorisation to deprive a person of their liberty. A managing authority can self authorise for seven days but must immediately seek supervisory body authorisation, this should be accompanied by a request for a standard authorisation.
These are granted by the Supervisory Body (the Local Authority Social Services Department).
Managing authority request for a standard authorisation, including a renewal of an existing standard authorisation where the person's care or treatment still amounts to a deprivation of their liberty. This will be assessed within a 21 day time frame and must accompany all urgent applications.
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