The DoLS application process begins when a potential deprivation of liberty has occurred or is about to occur. The care home or hospital (also known as the managing authority) must fill out an application form to seek authorisation for the deprivation. Once completed, the application form is sent to the local authority.
A managing authority can grant itself an urgent authorisation if an individual needs to be immediately deprived of their liberty to protect them from harm. When an urgent authorisation is used, details still need to be sent to the local authority. In these situations, an urgent authorisation section within a standard application form is completed. When a standard application relates to an urgent authorisation, local authorities have to complete the assessments within 7 days from the date the hospital or care home grants itself an urgent authorisation. If the standard application does not relate to an urgent authorisation, local authorities have 21 days to complete the assessments. Note that NHS Digital is unable to measure compliance with the 7 day standard as the date that the managing authority granted the urgent authorisation, i.e. the start of the 7 day period, is not included in the DoLS dataset.
Once the local authority receives an application, they must appoint at least two people to carry out six assessments. These must include a Mental Health Assessor (MHA) and a Best Interest’s Assessor (BIA). The MHA must be a doctor with the necessary skills, experience and training. The BIA could either be an Approved Mental Health Professional (AMHP), a social worker, a nurse, an occupational therapist or a chartered psychologist with the necessary skills, experience and training.
The six criteria that need to be assessed and fulfilled for an application to be granted are:
- Age Requirement: The person must be 18 years old or over.
- Mental Capacity Requirement: The person should be assessed as lacking the mental capacity to make a decision about the care or treatment they receive in a care home or hospital.
- Mental Health Requirement: The person should be assessed as having a mental disorder as defined under the Mental Health Act 1983 but disregarding any exclusion for people with learning disabilities.
- No Refusals Requirement: The person must not have made a relevant advance decision, nor have someone appointed (donee) under a Lasting Power of Attorney, nor a court appointed deputy, which / who is in opposition to the proposed care or treatment.
- Eligibility Requirement: A person is eligible unless they are subject to a requirement under the Mental Health Act 1983 that conflicts with the authorisation being requested, or object to being in hospital for the purpose of treatment of a mental disorder, or to being given some or all of the treatment in question, and they meet the criteria for detention under the Mental Health Act 1983.
- Best Interests Requirement: The aim of this assessment is to establish whether a deprivation of liberty is occurring or would occur, and if so, whether it is:
- in the best interests of the individual
- necessary in order to prevent them coming to harm
- a proportionate response to the likelihood of them suffering harm and the severity of that harm
Where all six criteria are met, the application is granted and this means that the individual can be legally deprived of their liberty by the hospital or care home. The authorisation can be granted for any length of time up to a year. If any of the six criteria are not met an authorisation cannot be granted. The assessment process should stop once an assessment fails to meet the criteria, with no further assessments being required to be undertaken.
During an authorised DoLS case, a number of reviews can occur, which will reassess whether the person should continue to be subject to a deprivation of liberty. Reviews may take place at any time during the DoLS period. There are statutory grounds for carrying out a review that are outlined in the DoLS Code of Practice.
The DoLS scheme can be used to assess and authorise deprivations of liberty in care home, hospice and hospital settings. However, a “deprivation of liberty” that is “attributable to the state” can occur in other “community settings”. This includes supported living arrangements and some domestic settings. In these settings, the DoLS scheme is not available and instead, an application must be made to the Court of Protection.
Flow chart outlining the DoLS cases included in this publication