Safeguards to protect vulnerable people lacking capacity to make decisions about where they live and their care, who are in a hospital or care home.
Covid-19 testing and consent
In July 2020, the Government announced regular testing for Covid-19 for anyone who works or lives in a care home.
Some people who live in care homes will not be able to consent to have a test without support. Others may also need to self-isolate for a period of time.
The Mental Capacity Act / Deprivation of Liberty Safeguards Team is working with health and social care colleagues to provide information on:
- how to support people unable to consent to having a test
- how care homes are supporting people who need to self-isolate, and are unable to consent to the arrangements.
Government guidance on the Mental Capacity Act and Deprivation of Liberty Safeguards during the current pandemic is available here
Easy read information on the Mental Capacity Act and Deprivation of Liberty Safeguards can be found here (pdf / 946 KB)
To ask questions or discuss any of this information further, please contact the Mental Capacity Act /Deprivation of Liberty Safeguards Team:
- Email: firstname.lastname@example.org
- Phone: 01609 536829
If a person is under continuous supervision or control, and are not free to leave then the local authority (North Yorkshire County Council) will need to deprive them of their liberty to keep them safe and ensure that the care or treatment they are receiving is in their best interests. The deprivation of liberty safeguards set out a process to be followed by hospitals or care homes before they can deprive someone of their liberty. The safeguards apply to people over the age of 18.
They also allow for a representative to be authorised to act on a person's behalf. See the frequently asked questions below for more details.
They give a right of challenge to the Court of Protection against unlawful deprivation and give individuals rights for their deprivation of liberty to be reviewed and monitored regularly.
When deprivation of liberty safeguards can be authorised
A hospital or registered care home must provide a specific treatment or care / support plan that is in the person's best interests. Doctors and care professionals involved must be satisfied that there is no more suitable plan that would be less restrictive. The hospital or care home must then apply to the supervisory body, which will carry out assessments. If all criteria are met, an authorisation will be granted for the shortest possible time, but for no longer than 12 months. The person and their family must be involved as much as possible in any decision made about them.
Delays in assessment under the safeguards
The numbers of applications for an assessment under the deprivation of liberty safeguards continue to rise. During 2014-15, North Yorkshire saw a 13-fold increase in the numbers of requests and these continue to rise.
This is due to a Court of Protection case which took place in 2014 called “Cheshire West”, which widened the definition of who would fall under the scope of the deprivation of liberty safeguards.
The Cheshire West judgement continues to challenge local authorities with the significant levels of activity it demands, and recent Department of Health guidance includes the following statements:
- "Due to the increase in requests, many local authorities are struggling to process requests within the legal time limit."
- "That providers and local authorities should have a plan in place re how to respond."
- "This plan will inevitably involve an element of prioritisation, to ensure that those individuals most likely to benefit from a deprivation of liberty safeguards assessment are assessed in a timely manner."
- "Despite delays, providers should not delay in sending in deprivation of liberty safeguards applications for individuals who meet the acid test."
- "The Department of Health views that if providers can demonstrate that they are providing a good quality or care / treatment for individuals in a manner compliant with the principles of the mental capacity act, and who are following Department of Health and other national guidance, they should not be treated harshly for technical deprivation of liberty safeguards breaches."
- "The Care Quality Commission will assess providers on a case-by-case basis where their deprivation of liberty safeguards applications have not been responded to within the statutory time limits. The Care Quality Commission will expect to see that providers are submitting applications for any individuals being deprived of their liberty without delay and that they are continuing to seek less restrictive options for those individuals care or treatment in the meantime. Services should be working with local authorities to ensure that the appropriate prioritisation of individuals most likely to benefit from a deprivation of liberty safeguards assessment is taking place."
We have adopted the ADASS prioritisation tool, which is used to prioritise individuals into high, medium and low priority for a deprivation of liberty safeguards assessment, dependent upon their individual circumstances, needs and levels of restriction placed upon them. Assessments that fall into the high and medium categories are currently managed within the timeframes. Unfortunately, there are severe delays in timescales to those requests for authorisation where the circumstances are assessed as low priority and North Yorkshire County Council are committed to ensuring that we assess those individuals as quickly as possible.
If your family member or a person you care for is currently awaiting an assessment and their needs or the level of restriction placed upon them has changed since the application was made, please contact the DoLS Team (contact details below) to update them.
- ADASS tool 2020 (pdf / 400 KB)
- Deprivation of liberty safeguards reducing restrictions tool (pdf / 445 KB)
- Care Quality Commission - notification about an application to deprive a person of their liberty (doc / 143 KB)
- Deprivation of liberty checklist for managing authority (pdf / 23 KB)
- Deprivation of liberty safeguards - a guide to the forms (pdf / 757 KB)
- Deprivation of liberty safeguards - a practical guide (pdf / 1 MB)
- Deprivation of liberty safeguards - a guide for relevant person's representatives (pdf / 141 KB)
- Mental capacity act 2005 - a guide for family, friends and unpaid carers (pdf / 99 KB)
- Mental capacity act 2005 - deprivation of liberty safeguards and you (pdf / 946 KB)
- The independent mental capacity advocate (IMCA) service (pdf / 242 KB)
- Protecting you in your care home and in hospital (an easy read guide to the deprivation of liberty safeguards) (pdf / 3 MB)
Managing authority newsletters
- Deprivation of liberty safeguards newsletter (Spring 2017) (pdf / 211 KB)
- Deprivation of liberty safeguards newsletter (February 2017) (pdf / 583 KB)
- Deprivation of liberty safeguards newsletter (Summer 2016) (pdf / 263 KB)
- Managing authority newsletter - March 2016 (docx / 601 KB)
- Managing authority newsletter - January 2016 (docx / 603 KB)
Deprivation of liberty - guidance
See the deprivation of liberty - a practical guide web page from The Law Society for comprehensive guidance on the law relating to the deprivation of liberty safeguards.
Frequently asked questions
An authorisation provides a representative to act on behalf of the person subject to the safeguards to protect their interests.
There are two types of authorisation:
These should be applied for by a hospital or care home when it is likely that during the next 28 days they will accommodate someone whose care regime may amount to a deprivation of liberty. The assessment process will be completed within 21 days.
A hospital or care home can give itself an urgent authorisation when the need is unforeseen, unplanned and immediate. It can last for up to seven days. A standard authorisation request must be made at the same time. In this circumstance, the assessment process must be completed in seven days.
Completing an authorisation
Customer Service Centre,
Deprivation of liberty safeguards advice and authorisation process
See the Deprivation of liberty safeguards - advice and authorisation process (pdf / 97 KB) document for an explanation of the process involved.
Deprivation of liberty - forms
Download the relevant deprivation of liberty form:
- Form 1 - request for standard and urgent authorisation (pdf / 382 KB)
- Form 2 - request for a further standard authorisation (pdf / 169 KB)
- Form 10 - review request (pdf / 69 KB)
- Form 12 - notification to coroner of death whilst deprived of liberty (pdf / 38 KB)
When an authorisation is granted
A deprivation of liberty authorisation can last up to one year and can be reviewed at any time. Anyone subject to an authorisation will have a representative appointed. This can be a friend or family member, or if there is no-one appropriate, a representative from Cloverleaf Advocacy will be appointed.
An independent mental capacity advocate will represent a person through the assessment process, if there are no friends or family to do so. An independent mental capacity advocate will also be appointed if requested to support the representative.
This process is valid only for those living in a hospital or registered care home. If someone is, or is likely to be deprived of their liberty but they live in their own home or in supported accommodation, an application should be made to the Court of Protection.
Training on the mental capacity act and deprivation of liberty safeguards is available to all our service providers in the independent sector via an e-learning package.
See the safeguarding training course dates for partner organisations (pdf / 948 KB) document for a list of courses available and how to access them. All courses must be booked online via our Learning Zone.
An account can be created in order to access the following council courses:
- Deprivation of liberty safeguards - registered managers / deputies / team leaders of care homes and hospitals
- Supporting individuals (age 16+) to make decisions within the mental capacity act
If you have secured a place on a particular course, but then are unable to attend, please inform employment support immediately by telephoning 01609 532190 or emailing email@example.com.
The social care institute for excellence website also offers many videos about mental capacity and related issues. The skills for care website also provides access to more information about the mental capacity act and deprivation of liberty safeguards. See the mental capacity act training resources page on the Social Care Institute for Excellence website for training sets from the Department of Health and other training resources. This Social Care Institute for Excellence directory also provides access to more information about the mental capacity act and deprivation of liberty safeguards.
The European Convention of Human Rights states that no person should be detained without due legal process. The process for people in care homes and hospitals is the deprivation of liberty safeguards. However, when the deprivation of liberty occurs in the person's own home, each case needs to be taken to the court of protection for the deprivation to be authorised.
The acid test applies to these cases, i.e. if the person lacks capacity to make the decision about their accommodation and treatment and is subject to continuous supervision and control and is not free to leave.
A person's own home is defined as a domestic situation, including extra care housing, supported accommodation and shared lives housing.
The assessments and court documentation are prepared by a social worker and a doctor. A person subject to an assessment is entitled to a regulation 3A advocate, who may be a family member or a friend, a paid advocate, a litigation friend or the official solicitor.
If the authorisation is granted, the court will state for how long and when the case should be reviewed.
One of the rights for every person under the deprivation of liberty safeguards is to have a relevant person representative to protect their interests throughout the process. The relevant person representative can be a family member, carer or friend or a paid representative who will usually be an independent mental capacity advocate.
Unpaid relevant person representatives - family / friends / carers
The relevant person representative's role is:
- To maintain regular contact with the person under the deprivation of liberty safeguards;
- To represent and support that person in all matters relating to the deprivation of liberty safeguards, including, if appropriate, requesting a review, using an organisation's complaints procedure on the person's behalf or making an application to the court of protection;
- To provide support that is independent of the relevant person's commissioners and service providers;
- To act in the best interests of the relevant person;
- To involve the person in the decision as much as possible; and
- To gather the wishes and feelings, beliefs and values and views of the relevant person.
Unpaid relevant person representatives can also gain access to the support of an independent mental capacity advocate by contacting the supervisory body, i.e. the local authority.
For more details, see this guide for relevant person's representatives.
Paid relevant person representatives independent mental capacity advocate
When there is no family member, friend or carer who is able, or willing to undertake the role of relevant person representative or the supervisory body (local authority) have made a decision to appoint a paid representative then a referral will be made to the relevant advocacy service.
Telephone: 01609 536829 (Monday to Friday, 10am to 3pm)
Please note that completed deprivation of liberty safeguards authorisation forms should be emailed to firstname.lastname@example.org.
The original form can be forwarded to:
North Yorkshire County Council customer services centre