Deprivation of Liberty Safeguards Policy

Aim

The aim of this policy is to ensure that Cavendish Homecare Professionals fully implement the deprivation of liberty safeguards and ensures that care is always provided in the safest and least restrictive way possible.

Background

The Mental Capacity Act 2005 (MCA) was introduced into England and Wales in April 2007. In the same year the Act was amended via the Mental Health Act 2007 and the deprivation of liberty safeguards (DoLS) were added.

The MCA provides a statutory framework to protect those who lack the mental capacity to make their own decisions, such as those with severe dementia, those with learning difficulties, or those with any other significant brain dysfunction. It sets out who can take decisions for people who lack capacity and introduces the concepts of best interest decisions, of a two-stage test for capacity, or a presumption of capacity, and lasting powers of attorney.

The MCA also provides guidance about the appropriate use of restraint and the deprivation of a person’s liberty.

The safeguards should ensure that a service provider only deprives someone of their liberty in a safe and correct way, and that this is only done when it is in the best interests of the person and there is no other way to look after them.

Key principles of the deprivation of liberty safeguards

The MCA provides a statutory framework for people who lack capacity to make decisions or take actions for themselves, and others may have to make those decisions on their behalf. When they do this, they should not deprive the person who lacks capacity of their liberty, unless it is essential to do so in the person’s best interests and for their own safety.

The aims of the DoLS are to:

provide legal protection for those vulnerable people who are deprived of their liberty otherwise than under the Mental Health Act 1983
prevent arbitrary decisions to deprive a person of liberty
give rights to challenge any deprivation of liberty

DoLS protect people who cannot make decisions about treatment or care and who need to be cared for in a restrictive way.

They only apply to people who lack the capacity to make their own decisions, who are aged 18 and over, and who are in NHS hospitals, or in independent hospitals or in care homes that are registered under Part 2 of the Care Standards Act 2000.

The safeguards require that a hospital or care home – the managing authority – must seek authorisation from the responsible supervisory body in order to be able to deprive someone who lacks the capacity to consent of their liberty.

According to the guidelines an authorisation check must be performed wherever the safeguards apply. This should consider all the circumstances of each case.

The aim of the DoLS authorisation is to protect the person’s rights. It does not mean that the authorisation or the care provider have to restrict the person’s freedoms unless they have to do so in the person’s best interests.

It is unlawful to carry out an action that will deprive someone of their liberty without an authorisation for this action being in place.

Implementation

Cavendish Homecare Professionals fully supports the implementation of the Mental Capacity Act and the deprivation of liberty safeguards.

In Cavendish Homecare Professionals:

A care regime should be supported which promotes the freedom, dignity and autonomy of clients where they have maximum control over their daily lives. Care should be person-centred and involve families, friends and carers. It should always be provided in the least restrictive way possible.
The deprivation of a person’s liberty is a very serious matter and should not happen unless it is absolutely necessary. Restraint may be necessary on rare occasions – it is appropriate when it is used to prevent harm to the person who lacks capacity and is a proportionate response to the likelihood and seriousness of harm.
Managers and staff need to recognise when a client might be being deprived of their liberty and take appropriate action. Recognising situations in which liberty may be restricted should be accomplished with reference to the Supreme Court ruling referred to above.
It is vital that the relevant person’s capacity to make decisions about his/her care arrangements is assessed with reference to the Mental Capacity Act 2005. It is only if the person lacks capacity to consent to the arrangements for their care that the deprivation of liberty safeguards become relevant. A person with capacity will make their own decisions, and a person suffering from a mental disorder who has capacity will be treated under the provisions of the Mental Health Act 1983.
When making such an assessment, the spirit of MCA and DoLS should encourage a person-centred view of the restrictions in place for an individual. Individuals who are identified as potentially deprived of their liberty must be considered on a case-by-case basis.
Before considering deprivation of liberty, staff must complete any supporting documentation including mental capacity assessments, risk assessments and best interest decisions.
If it is identified that care is being provided in a way that restricts the liberty of an individual, an immediate review should be conducted to take all reasonable steps to avoid a deprivation of liberty and see if the care and/or treatment can be provided in a safe way which is the least restrictive.
If it is decided that the person cannot be safely cared for and/or treated in any other less restrictive way, a referral to the local authority deprivation of liberty safeguards team must be made for authorisation. The local authority will appoint a best interests assessor to carry out an assessment. Such best interests assessments must be completed within 21 days, or seven days if an urgent authorisation has been granted.
Any application for an authorisation must be sought in advance of restrictions being introduced, except in an emergency when an urgent authorisation may be issued by the managing authority at the time the application is made.
All decisions should be recorded and kept under review.
Factors which may indicate deprivation of liberty should be made in reference to latest case law and guidance from the Supreme Court. The European Court of Human Rights has identified the following factors as contributing to a finding of deprivation of liberty:
- restraint being used, including sedation, for a resistant person
- staff exercising complete and effective control over a person’s care and movement for a significant period
- staff exercising control over assessments, treatment, contacts and residence
- preventing a person from leaving if they made a meaningful attempt to do so
- a person losing autonomy because they are under continuous supervision and control.
Account must be taken of the particular situation that the relevant person is in – circumstances are likely to be different in each situation. Depending on the context, all of these may need to be assessed, but may represent the best way to provide care.
In all cases the fact that a person who lacks capacity is living in a care home does not in itself necessarily mean they are being deprived of liberty.
Although appropriate restraint may lawfully be used under the MCA, it should be seen as an indicator that a person’s wishes may be being over-ridden.
Where the local authority approves the care it will grant an authorisation. In such cases a representative will be appointed to support the client and look after their interests. The home should cooperate at all times with such a representative.
An authorisation should last for the shortest time possible up to a maximum of 12 months.
The service provider must
- make regular checks to see if the authorisation is still necessary
- readdress the authorisation whenever there is a change to a client’s care plan
- remove the authorisation where it is no longer necessary
- provide the person who has a DoLS authorisation and their representative with information about the authorisation and their rights and entitlements.
Not every assessment will result in an authorisation. In these cases the best interests assessor will ask that the care be delivered in some other way that is less restrictive.
If the person deprived of their liberty or their representative does not agree with the decision to deprive them of liberty, the DoLS gives them the right to appeal against the decision in a court.

Training

All Cavendish Homecare Professionals nursing and care staff should be trained in the basic principles of the Mental Capacity Act and in its direct application to their work, including training in the requirements of the deprivation of liberty safeguards.

Staff and managers should know: