For standard Deprivation of Liberty Safeguards guidance and forms, see the DOLs Advice and Guidance pages.
The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DOLS) provide protection for vulnerable people whose care or treatment arrangements might amount to a deprivation of their liberty and who lack the capacity to consent to those arrangements.
However, following the Supreme Court decision of 19 March 2014, the accommodation settings in which a person might be deemed to be deprived of their liberty include, but are not limited to, 'domestic settings' such as:
- Supported housing (where support is provided on a 24/7 basis)
- Shared lives and adult placement schemes ('Domestic Settings')
- Post-18 residential colleges
The 'acid test' for whether those arrangements amount to a deprivation of liberty is as follows:
- Is the individual subject to continuous supervision and control, and
- Is the individual NOT free to leave the placement, and
- Is the individual unable to consent to such arrangements
If the answer to all of the above questions is 'Yes', then the person is deprived of their liberty and authorisation must be sought from the Court of Protection for that to continue in each case. A deprivation of liberty that does not have the appropriate authorisation will be unlawful.
In relation to being "free to leave", Lord Justice Munby gave this guidance: "When I refer to leaving X home or leaving Y home I do not mean leaving for the purpose of some trip or outing…I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses…"
Assessing people's circumstances
To determine whether a person is deprived of their liberty, providers should review them using the Individual Scale Tool.
Where a completed scale tool indicates that a person might be deprived of their liberty, the forms should be sent securely to the Manchester City Council contact centre:
Fax: 0161 255 8266
The relevant care co-ordinator will then arrange to visit the person and the provider to complete the relevant assessments.
These assessments will identify those persons who:
- Cannot be placed in a less restrictive environment, and
- Will continue to be deprived of their liberty, and
- Whose deprivation must be authorised by application to the Court of Protection - this will be done by the commissioning organisation's legal team.
Dealing with high volumes of assessments
If a partner or stakeholder has to assess many people at once, the guidance from ADASS (Association of Directors of Adult Social Services) will be useful. They recommend that those at highest risk have the earliest protection from the safeguards.
This can be done by prioritising assessments where the person meets the ‘acid test’ and there is urgency or a change of circumstances for the person, however in cases where the person is living in ‘settled circumstances’ and not determined as at high risk, the person can be assessed in line with their annual review.
Partners and stakeholders are also reminded that they must review care plans in partnership with the placing / funding authority to consider less restrictive options which may subject the person to unnecessary and intrusive interventions, before authorisations from the court are requested.
For more information, or for training please contact Emma Fowler or Louise Tanner at: firstname.lastname@example.org