Definition
The Supreme Court has now confirmed that to determine whether a person is deprived of their liberty, there are 2 key questions to ask, described as the 'acid test':
- Is the person free to leave
- Is the person subject to continuous supervision and control
Whether or not the person objects to the arrangements, and even though the arrangements may be considered to be in the person's best interest, are irrelevant.
This now means that if a person lacks capacity to consent to the care and/or treatment arrangements, is not free to leave and is subject to continuous supervision and control, they are deprived of their liberty.
The Judgement also advises that a low threshold should be used in applying the 'acid test' given the vulnerability of people who are likely to be deprived of their liberty and the intention that the Deprivation of Liberty Safeguards should be protective of such people.
Authorisation
A deprivation of a person's liberty must be authorised in accordance with the law in one of the following ways:
- Registered Care Homes - authorisation via Deprivation of Liberty Safeguards.
- Supported Living/domestic settings such as adult family placements - authorisation via the Court of Protection (you will need to obtain specific legal advice regarding the steps you need to take in these circumstances).
- Hospitals - authorisation via the Mental Health Act on Psychiatric wards
- Acute Hospitals – authorisation via Deprivation of Liberty Safeguards.
Anyone can request a deprivation of liberty assessment but in general it will be the role of the Managing Authority (care home or hospital) to alert the Supervisory Body (Oldham Council) who instruct and authorise assessments from a Best Interests Assessor and Mental Health section 12 Assessor.
There are 2 types of Authorisation requests, standard and urgent:
Standard authorisation
A managing authority must request a standard authorisation when it appears likely that, either currently or at some time during the next 28 days, someone will be accommodated in their hospital or care home in circumstances that amount to a deprivation of liberty.
Whenever possible, authorisation should be obtained in advance.
Urgent authorisation
(Must not exceed 7 days).
The Managing Authority can give an urgent authorisation for a Deprivation of Liberty where it believes the need is immediate. This should normally only be used in response to sudden unforeseen needs but also may be used in care planning e.g. to avoid delays in transfer for rehabilitation where delay would reduce the likely benefit of rehab.
Any decision to issue an urgent authorisation and take action that deprives a person of liberty must be in the person’s best interests.
A deprivation of liberty authorisation can last up to one year and should be reviewed regularly.
Everyone on a DoLS authorisation will have a representative, either a family member or a friend OR a paid representative if no family/friends are identified to take on this role.
Independent Mental Capacity Advocates (IMCAs) will represent a person being assessed by a Best Interests Assessor if they have no friends or family to represent them. An Independent Mental Capacity Advocate will also be available to provide support to family or friends acting as representatives.
Litigation friend
The court can appoint anyone to be a litigation friend, for example:
- a parent or guardian
- a family member or friend
- a solicitor
- a professional advocate, eg an Independent Mental Capacity Advocate (IMCA)
- a Court of Protection deputy
- someone who has a lasting or enduring power of attorney
Information for managing authorities/professionals
If you need any information regarding the application process or any other aspect of DoLS please email:
The forms are available on request by email to Dols.referrals@oldham.gov.uk if you have not already received them.
Information for families
If your relative or friend is in a care home or hospital and meets the eligibility criteria for Deprivation of Liberty Safeguards, (this is sometimes known as the ‘Acid Test’) ie:
- they lack capacity to make decisions about care and treatment
- they are under continuous supervision and control by staff
- they are not free to leave the care home or hospital
The manager of the hospital ward or care home should apply to the Supervisory Body for authorisation to deprive a person of their liberty and this should be in that person’s best interests.
The person is entitled to a legal representative, usually known as the Relevant Person’s Representative (RPR) and this can be anyone close to the person who visits often enough to be aware of any concerns.
If you need help with the role or if a person has no friend or family member to take on the role of RPR, a referral can be made to an Independent Mental Capacity Advocate (IMCA) service. This service is provided in Oldham by Advocacy Experience.