Easier Deprivation of Liberty Safeguards forms (“DoLS”)
These standards are intended to ensure people who do not have the mental capacity to consent to their care arrangements in a care home or hospital are protected if those arrangements deprive them of their liberty. Arrangements are assessed to check they are necessary and in the person’s best interests. Representation and the right to challenge a deprivation are other safeguards that are part of DoLS. Deprivation of Liberty orders can have a disastrous (but avoidable with sound planning) effect on your family or business with anything in joint names likely to be frozen pending the appointment of a Court of Protection Deputy to manage your financial affairs.
Anyone over 18 who does not have the necessary Lasting Powers of Attorney in place is effectively passing the authority to make decisions about their lives to the Court of Protection if it is considered by any “authority” (in the widest possible terms) considers they are incapable of making their own decisions within a reasonable time depending on the urgency of the situation. This is a situation that no sensible person can find acceptable, and makes Lasting Powers of Attorney an essential part of your Legal Planning.
Deprivation of Liberty Safeguards Easier to implement with new forms.
Depriving someone of their liberty, under DoLS, if done correctly, involves a massive amount of forms.
It has required 32 separate forms to justify depriving someone of their liberty, so you can quite see why things are not always in apple-pie order. A government backed review led by the Association of Directors of Adult Social Services (Adass), found that the paperwork could be condensed from 32 forms down to 13 ‘without losing necessary quality’. Hopefully. It is a shame that 52% of Social Workers don’t apply the test for mental capacity correctly, according to a recent test.
But these forms will not cover everything, leaving plenty of space for things to fall between the gaps (perhaps.)
At least if you have a register Health and Welfare Lasting Power of Attorney in place, the family will be able to put up a fight if the Social Workers, who are always under immense pressure, may be going down the wrong route. Or perhaps your family know you better than a Social Worker with a very short period to assess an individual without neglecting the rest of their case load. Of course their are checks and balances, but they are usually applied by people or institutions on very brief knowledge of the facts and your personality, wishes and needs.
The DoLS Code of Practice accompanying the safeguards says:
The difference between deprivation of liberty and restriction upon liberty is one of degree or intensity. It may therefore be helpful to envisage a scale, which moves from ‘restraint’ or ‘restriction’ to ‘deprivation of liberty’.
The Code of Practice has a list of things that have been taken into account by the European Court of Human Rights and UK courts when deciding what amounts to deprivation of liberty. These are only factors and not conclusive on their own. It will be a question of degree or intensity.
- Restraint is used, including sedation, to admit a person to an institution
where that person is resisting admission.
- Staff exercise complete and effective control over the care and movement
of a person for a significant period.
- Staff exercise control over assessments, treatment, contacts and
- A decision has been taken by the institution that the person will not be
released into the care of others, or permitted to live elsewhere, unless the
staff in the institution consider it appropriate.
- A request by carers for a person to be discharged to their care is refused.
- The person is unable to maintain social contacts because of restrictions
placed on their access to other people.
- The person loses autonomy because they are under continuous
supervision and control.
Anyone who says Lasting Power of Attorney Health and Welfare is uncessary is giving dangerous advice, in our opinion. So why not get organised, no one know what the future holds.
The new Deprivation of Liberty forms can be downloaded here.