Hi Sheila, we have some customers who have been deemed not to have capacity around accommodation and finances and have court of protection, issued in 2012 and is getting redone currently. Do we need a DoLs assessment as well? As the tenancy for the rented house is in their name and we provide 24 hour support, they are not allowed to be left alone and have 1:1 staffing when out in the community. Who would need to complete the DoLs assessment, would this be down to their social worker or our Domiciliary Company?

Answered by Sheila Scott

Dear Jo,

Thank you for your question.

I wanted to get an expert in the Mental Capacity Act and DoLS to respond so I asked Rachel Griffiths QCS’s Mental Capacity and Human Rights Specialist to respond and this is what she said:

• The deprivation of liberty safeguards, known as DoLS, are a framework for protecting people’s rights when they’re deprived of liberty in their best interests. DoLS only apply, however, in hospitals and care homes: they can’t be used by supported living providers.
• From what you say, this person does sound as if they may well be deprived of their liberty.  Remember that the ‘acid test’ relates to the entire care plan, and has three questions, which must all be answered ‘yes’ for them to be deprived of their liberty:

Does the person lack the capacity to consent to the arrangements needed to give them necessary care or treatment?

Is the person under continuous supervision and control?  (this means, do staff know, at all times of day and night, where the person is and roughly what they’re doing); and

If they tried to leave where they are living (to go out alone, or even to go and live somewhere else) would staff stop them, in their best interests?

• When thinking about the first question, remember that capacity is ‘can the person make this decision at the time it needs to be made?’  This means that, just because the person can’t make financial or accommodation decisions, you should think about whether they also lack the specific capacity to understand, and consent to, the way they need to be restricted in their movements and accompanied, to keep them safe and enable care to be given.  The chances are that this won’t be hard for you to decide, but you and your staff are responsible for making this decision, since you and they will be carrying out the actions that deprive the person of their liberty.  For how to assess capacity, see MCA code of practice chapter 4 at: https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
• You must always work within the code; this means you must always look for the ‘least restrictive option’ in delivering care.  This applies, of course, to deprivation of liberty.  What you are doing must be necessary to prevent harm to the person, and a proportionate response to how serious that harm would be, and how likely it is.
• But all is not lost!  In supported living (and shared lives schemes) any deprivation of liberty that meets the conditions above can be authorised directly by the Court of Protection.
• You do not need to do this, but you must ‘set the ball rolling.’  Contact the person’s social worker or, if the case isn’t kept open to social work, the commissioner.  Explain that you think the acid test is met and that the person lacks capacity to consent to the care plan.  This means the commissioner (usually local authority, but might be a health body) must seek authorisation from the Court of Protection.
• The local authority legal department will lead on all the processes necessary and take the case to court.  They will also fund this.
• Benefits to you for doing this include:  you will know that your care is lawful, and that you’re not restricting the person more than is necessary to keep them safe.  , And, by working within the framework of the Mental Capacity Act in this way, you and your staff are protected from liability.

I am very grateful to Rachel for such a comprehensive response.

With best wishes.

Sheila