The Deprivation of Liberty Safeguards (DoLS) are a crucial part of the legal framework designed to protect the rights of individuals who lack mental capacity and need care in settings such as hospitals or care homes. For individuals with a Lasting Power of Attorney (LPA), the question of how DoLS may affect their care decisions and the powers of their attorneys can be complex. Understanding the relationship between LPAs and DoLS is vital for ensuring that the person’s best interests are upheld while respecting their legal rights.
In this article, we will explore what Deprivation of Liberty Safeguards are, how they relate to Lasting Powers of Attorney, and what steps should be taken when a deprivation of liberty is necessary.
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What Is a Lasting Power of Attorney (LPA)?
A Lasting Power of Attorney (LPA) is a legal document that allows someone (the “donor”) to appoint one or more people (the “attorneys”) to make decisions on their behalf if they lose the mental capacity to do so. There are two types of LPAs:
- Property and Financial Affairs LPA: This allows attorneys to manage the donor’s financial matters, such as paying bills, managing bank accounts, and selling property.
- Health and Welfare LPA: This type enables attorneys to make decisions regarding the donor’s personal care, medical treatment, and living arrangements, but only when the donor has lost mental capacity.
What Are the Deprivation of Liberty Safeguards (DoLS)?
The Deprivation of Liberty Safeguards are a part of the Mental Capacity Act 2005 and are designed to protect individuals who are in care settings such as care homes, hospitals, or supported living environments. These individuals may lack the mental capacity to make decisions about their care or living arrangements. The aim of DoLS is to ensure that any deprivation of liberty – for example, restricting someone’s movement or making decisions about their care – is done in a lawful and least restrictive way, while safeguarding the person’s rights.
A deprivation of liberty occurs when a person is under continuous supervision and control and is not free to leave their care setting. It is important to note that such actions, even if necessary, must be authorised under the DoLS framework to ensure that the individual’s human rights are protected.
When Is a Deprivation of Liberty Likely to Occur?
A deprivation of liberty may occur in situations where the person cannot make decisions for themselves, often due to dementia, learning disabilities, or other conditions affecting mental capacity. For example:
- Being unable to leave the care home or hospital: If an individual is confined to a care setting and not permitted to leave, this could be considered a deprivation of liberty.
- Restricted movement: Preventing a person from freely moving around the care setting or requiring them to stay in a specific area.
- 24-hour supervision: When a person is placed under constant supervision and control by care staff.
- Decision-making on their behalf: In some cases, decisions about where the person should live or what care they should receive may be made without their consent.
If such restrictions are in place, and the individual does not have the capacity to agree to them, the care provider must apply for authorisation under DoLS to ensure the arrangements are lawful.
How DoLS Relate to LPAs
For individuals who have appointed attorneys under a Health and Welfare LPA, there is often confusion about how DoLS applies. While attorneys are empowered to make decisions about the donor’s care and living arrangements, they do not have the authority to authorise a deprivation of liberty. This is because any restriction on a person’s freedom that amounts to a deprivation of liberty must be scrutinised and approved by a legal process.
Here are some key points to understand about the relationship between LPAs and DoLS:
- Attorneys Cannot Authorise a Deprivation of Liberty: Even if an attorney is acting under a Health and Welfare LPA, they cannot independently authorise any deprivation of liberty. This means that, despite having the authority to make care-related decisions, they cannot give permission for the donor to be placed under constant supervision or confined to a care setting without a DoLS authorisation.
- Attorneys Are Involved in the Decision-Making Process: While attorneys cannot authorise a deprivation of liberty, they must still be consulted as part of the DoLS process. Care providers and local authorities are required to take the attorney’s views into account when considering whether to apply for a DoLS authorisation. The attorney’s role remains critical in ensuring that the donor’s best interests are upheld.
- Best Interests of the Donor: Attorneys under a Health and Welfare LPA have a legal duty to act in the donor’s best interests. If a deprivation of liberty is necessary to protect the donor’s health and well-being, the attorney should advocate for the least restrictive option and ensure that any restrictions are appropriate and proportionate. If the attorney believes the deprivation of liberty is not in the donor’s best interests, they can challenge the decision.
- Challenging a Deprivation of Liberty: If an attorney believes that a deprivation of liberty has been imposed without proper authorisation or that the restrictions are excessive, they can challenge the decision. The attorney can request a review of the DoLS authorisation or apply to the Court of Protection to dispute the care arrangements.
The DoLS Process
The DoLS process is intended to ensure that any deprivation of liberty is lawful, necessary, and in the best interests of the individual. The process involves several steps:
- Applying for Authorisation: If care providers believe that a deprivation of liberty is occurring, they must apply for authorisation from the local authority. This usually applies in care homes and hospitals. In other settings, such as supported living, authorisation must be sought from the Court of Protection.
- Assessment: Before a deprivation of liberty can be authorised, the individual will undergo an assessment to determine whether they lack the capacity to make decisions about their care and whether the deprivation of liberty is necessary. The assessment will consider whether less restrictive options are available.
- Consultation with Attorneys and Family Members: As part of the assessment, the local authority must consult with the attorney (if there is a Health and Welfare LPA) and family members to ensure their views are considered. The attorney plays a key role in providing information about the donor’s preferences and best interests.
- Authorisation Decision: If the assessment concludes that a deprivation of liberty is necessary, the local authority will grant an authorisation, usually for a set period. This authorisation will include safeguards to ensure that the deprivation is regularly reviewed and remains necessary.
- Regular Reviews: Deprivation of liberty authorisations are not indefinite. They must be reviewed regularly, and if the individual’s circumstances change, the authorisation may be revoked or adjusted. Attorneys should stay informed about these reviews and advocate for the donor’s rights.
What Happens If DoLS Are Not Followed?
If a deprivation of liberty occurs without proper authorisation, it is unlawful and could result in a breach of the donor’s human rights. Unauthorised deprivations of liberty can be challenged by attorneys or family members, and care providers may face legal consequences.
In such cases, the attorney can take the following steps:
- Request a Review: If the attorney believes that a deprivation of liberty is occurring without authorisation, they can request an urgent review by the local authority or care provider.
- Apply to the Court of Protection: If the attorney disagrees with the deprivation of liberty or the terms of the authorisation, they can apply to the Court of Protection to have the arrangements reviewed or changed. The court can revoke or amend the authorisation if it finds that the deprivation is not in the donor’s best interests or that less restrictive options are available.
- Seek Legal Advice: In situations where an unauthorised deprivation of liberty has taken place or where the attorney is concerned about the donor’s treatment, seeking legal advice from a solicitor experienced in mental capacity law is essential. Solicitors can help navigate the complex legal processes involved in challenging DoLS and ensuring the donor’s rights are upheld.
Changes on the Horizon: Liberty Protection Safeguards (LPS)
The current DoLS system is due to be replaced by the Liberty Protection Safeguards (LPS), which is intended to simplify and improve the process of authorising deprivations of liberty. While the introduction of LPS has been delayed, it will likely bring changes to the role of attorneys and the DoLS process when implemented.
Under LPS, attorneys will continue to play a critical role in safeguarding the donor’s rights, but the system will be more streamlined, with a focus on reducing bureaucracy and ensuring timely authorisations.
Conclusion
Deprivation of Liberty Safeguards (DoLS) are designed to protect vulnerable individuals who lack the mental capacity to make decisions about their care. For those with a Health and Welfare LPA, attorneys have an important role in ensuring that any deprivation of liberty is lawful, necessary, and in the donor’s best interests.
While attorneys cannot authorise a deprivation of liberty, they are key participants in the decision-making process, ensuring that the donor’s rights are respected. If you are an attorney or are considering appointing one, it is essential to understand how DoLS works and what steps can be taken to challenge or review decisions if needed.
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Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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