Deprivation of liberty safeguards
From 1 April 2009, managers of hospitals and registered care homes (managing authorities) have a duty to notify a 'supervisory body' of any person they are caring for who is, or is likely to be, deprived of his or her liberty.
Staff working in hospitals or registered care homes who identify a person they are caring for who may be, or is likely to be, deprived of his or her liberty should notify their manager immediately.
The managing authority is legally obliged to request an authorisation from the supervisory body, otherwise it might be the case that the person is being deprived of his or her liberty unlawfully.
Care homes and hospitals who are depriving someone of their liberty, or are about to deprive someone of their liberty must apply to the relevant Supervisory Body for a Standard Authorisation.
In cases of urgent necessity, care homes and hospitals are able to grant themselves authorisation for up to seven days (extendable to 14 days in certain circumstances) whilst they await the necessary assessments to be completed by the Supervisory Body. Whenever a care home or hospital grants itself an urgent authorisation it must also make a request to the Supervisory Body for a DOLS Standard Authorisation
Norfolk County Council is the Supervisory Body for all applications to deprive a person of their liberty who is ‘ordinarily resident’ in Norfolk. This means that we are also responsible for people placed in care homes outside of Norfolk and for people who are ordinarily resident in Norfolk but become admitted to hospitals elsewhere. We are not responsible for people who have been placed in care homes in Norfolk by other local authorities, nor for people who ordinarily reside elsewhere but are admitted to hospitals physically situated in Norfolk.
Only care homes or hospitals can make an application to the Supervisory Body. All requests must be made in writing, and the care home or hospital must keep a written copy of the request. To make an application to Norfolk County Council, please use our e-DOLS system. You will be able to print a copy of your application for your records at the end of the process, but you no longer need to fax or post the council a paper copy of the form as we have simplified our process.
Further information about DOLS applications
There is no simple definition of deprivation of liberty that can be applied in every case and it is probably that no single factor will, in itself determine whether the overall set of steps being taken in relation to the relevant person amount to a deprivation of liberty.
The Supreme Court Judgment ( P v Chester and Cheshire West and P&Q v Surrey County Council) was handed down on 19 March 2014 and established an ‘acid test’ for deciding whether or not someone was being deprived of their liberty. The court held that the factors for deciding when a person lacking capacity is being deprived of their liberty are that:
- The person is subject to continuous supervision and control; and
- The person is not free to leave; and
- The person lacks capacity to consent to their care arrangements; and
- This is imputable to the state
The Code of Practice on the Deprivation of Liberty Safeguards contains further details, but, whether someone is being deprived of their liberty or not will be a matter of judgment and interpretation by care staff and ultimately by the courts.
Further information on the Supreme Court Judgment:
It is a serious issue to deprive someone of their liberty without authorisation. If you believe this to be happening, you should firstly draw this to the attention of the manager of the care home or hospital.
A standard letter for the care home or hospital is available for this purpose.
It may be possible for the care home or hospital to resolve the matter informally with the person who has the concerns and perhaps may some adjustment to the care arrangements so that the person is no longer deprived of their liberty. If this is not possible to resolve quickly, the managing authority should submit a request for a standard authorisation.
If the deprivation of liberty persists and the managing authority does not apply for an authorisation within a reasonable period, the person with concerns can ask the supervisory body to decide whether there is an unauthorised deprivation of liberty. The person who has concerns should:
- Tell the supervisory body of the name of the person they are concerned about and the name of the hospital or care home; and
- As far as they are able, explain why they think that the person is being deprived of their liberty
A standard letter for the supervisory body is available for this purpose.
The supervisory body must consider the concerns and notify the person who has the concerns of the outcome of their considerations and whether or not it has been decided to commission an assessment.
Once a standard deprivation of liberty authorisation has been granted, the supervisory body must appoint someone to represent the relevant person as soon as possible. This person is called the "Relevant Person's Representative".
Once appointed, a Relevant Person's Representative should:
- Maintain contact with the relevant person
- Represent and support the relevant person in all matters relating to the deprivation of liberty safeguards, including, if appropriate, triggering a review, using an organisation's complaints procedure on the person's behalf or making an application to the Court of Protection
To be eligible to be the relevant person's representative, a person must be:
- Eighteen years of age or over
- Able to keep in contact with the relevant person
- Willing to be appointed
The person must not be:
- Financially interested in the relevant person's managing authority (eg a partner, director, other office-holder or major shareholder of the managing authority)
- A relative of a person who is excluded in the above point
- Employed by, or providing services to, the care home in which the person relevant is residing
- Employed by the hospital in a role that is, or could be, related to the treatment or care of the relevant person
- Employed to work in the relevant person's supervisory body in a role that is, or could be, related to the relevant person's case
The appointment of the relevant person's representative is in addition to, and does not affect, any appointment of donee or deputy. There is no presumption that the relevant person's representative should be the same as the person who is their Nearest Relative for the purposes of the Mental Health Act 1983. However, a Nearest Relative, donee or deputy could be appointed simultaneously as the relevant person's representative provided they meet the criteria above.
The supervisory body must write to the person concerned inviting them to be appointed as such. If the person is willing to be appointed, the supervisory body will formally appoint them.
Further details about the Relevant Person's Representative can be found in Chapter 7 of the Code of Practice on the Deprivation of Liberty Safeguards.
See also the leaflet on the Guide for the Relevant Person's Representative.