Responding to a Deprivation of Liberty
Scope of this chapter
Article 5 of the Human Rights Act 1998 states that “everyone has the right to liberty and security of person, and no one shall be deprived of his or her liberty unless in accordance with a procedure prescribed in law”.
Deprivations of liberty that have not been authorised by either the local authority (through the DoLS framework) or the Court of Protection are unlawful and a breach of a person’s basic human rights.
This chapter will explain the action you should take if you identify that the care, support or treatment being arranged (or already being provided) amounts to a Deprivation of Liberty.
Relevant Regulations
Related Chapters and Guidance
Amendment
Section 4, Failure to act was updated in August 2024 to clarify that the registered person should always monitor the progress of any deprivation of liberty referral made.
The Deprivation of Liberty Safeguards (DoLS) is the legal framework for authorising a Deprivation of Liberty in a care home setting.
It is the responsibility of the registered person (known in the DoLS Framework as the ‘managing authority’) to ensure that a standard authorisation is requested as soon as a deprivation of liberty is identified.
See: The DoLS Process.
The DoLS framework does not apply in any care setting other than a care home or hospital. In other settings, an application must be made to the Court of Protection. The Court of Protection has jurisdiction to decide all matters relating to the Mental Capacity Act 2005, under which deprivation of liberty falls.
It is the responsibility of the registered person to contact the organisation that is commissioning the service, who should make the court application. This is normally the local authority or the ICB. This should be done as soon as a deprivation of liberty is identified.
If the service is being privately funded, the local authority should be contacted to make the application.
If the service is jointly funded, both commissioning organisations should be notified. They will then decide who is best placed to make the application.
If the Court grants authority to deprive the person of their liberty, a copy of the order should be kept on the person’s file. Restrictions that deprive the person of their liberty must only take place in accordance with that order.
Regardless of who has made the court application, under Regulation 18 of the Care Quality Commission (Registration) Regulations 2009, the registered person must ensure that the CQC is notified when:
- A deprivation of liberty order has been granted;
- A deprivation of liberty order has been declined; or
- A deprivation of liberty application has been withdrawn.
For further guidance see: CQC-Outcome of an application to deprive a person of their liberty – notification form.
The DoLS Framework does not apply to anyone under the age of 18. All deprivations of liberty must be managed through the courts. Where there are no existing proceedings about the young person, this is usually the Court of Protection. Where there are existing proceedings, the family court can decide to hear the matter.
It is the responsibility of the registered person to contact the organisation that is commissioning the service, who should make the relevant court application. This is normally the local authority (Children’s Services) or the ICB. This should be done as soon as a deprivation of liberty is identified.
If the Court grants authority to deprive the young person of their liberty, a copy of the order should be kept on the person’s file. Deprivations of liberty must only take place in accordance with that order.
If the registered person does not take the appropriate action as explained above, the service will be breaking the law if it puts in place care arrangements that deprive a person of their liberty.
If the registered person takes the necessary action, they will not be culpable for any failure to act (or delay in acting) on the part of the local authority or ICB.
Although not culpable for any failure to act on the part of the local authority or ICB, the registered person should always monitor the progress of any referral made and contact them if they are concerned about any delays in the process.
Last Updated: July 30, 2024
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