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Monitoring and Reviewing Restrictions

Scope of this chapter

Even when a deprivation of liberty has been authorised, it is important that we continue striving to try and find a less restrictive way to provide care and support so that the person is not deprived any longer than they need to be.

This chapter explains when the service should request the review of a deprivation of liberty authorisation, and how to do this. It applies to all settings.

Relevant Regulations

Related Chapters and Guidance

Amendment

In April 2024, this chapter was reviewed and refreshed.

April 1, 2024

A review must be requested when any of the following 3 ground for review apply:

  1. One or more of the qualifying requirements is no longer met;
  2. The reason that any qualifying requirement is met has changed;
  3. The conditions on the standard authorisation need amending.

The qualifying requirements

Caption: Indicators that a qualifying requirement is no longer met
Qualifying requirement Indicator it is no longer met

Age requirement

This is not applicable, as the only time that this requirement is not met is if the person is under the age of 18.

Mental health requirement

The person has been deemed by a mental health professional to no longer have the mental health disorder upon which the authorisation was granted.

Mental capacity requirement

The person no longer lacks the mental capacity to decide whether they should live in the care home and receive the care or treatment being provided.

Best interests requirement

The deprivation of liberty is no longer necessary or a proportionate measure to reduce the likelihood and seriousness of harm. This could be because the level of risk has been reduced, or an alternative and less restrictive way of supporting the person has been identified.

Eligibility requirement

The person has become subject to detention under the Mental Health Act 1983.

Note: This situation is not managed through the review process, but through the suspension process (see Section 4, Suspension of a standard authorisation below)

No Refusals requirement

A Lasting Power of Attorney or court appointed Deputy no longer supports the standard authorisation arrangements.

Note: A review must not be requested when the criteria for a suspension of a standard DoLS authorisation is met (see Section 4, Suspension of a standard authorisation below).

Note: A review must also not be requested if a standard authorisation is due to end and a request has been made (or is going to be made) for a further standard authorisation.

A review should be requested when any of the following apply:

  1. The person no longer lacks the mental capacity to consent to the care or treatment being provided;
  2. The deprivation of liberty is no longer necessary or a proportionate measure to reduce the likelihood and seriousness of harm. This could be because the level of risk has been reduced, or an alternative way of supporting the person has been identified;
  3. The person has become subject to detention under the Mental Health Act 1983.

Form 10: Review Request

Please note, before downloading the form from the government website, check whether your local authority has its own version and process that they require you to use. Some local authorities have created a specific form for requesting a standard authorisation review.

If using the government form, the sections relating to requesting a standard authorisation review must be completed. This is page 1 and 2.

There is guidance to support you to understand and complete the form:

The Mental Capacity Act Deprivation of Liberty Safeguards: Guidance to the Forms

The form must be submitted to the supervisory body in line with local processes.

The supervisory body should confirm receipt of the review request. If no such confirmation is received within 24 hours, the managing authority should contact them to make sure the request has been received.

The supervisory body is responsible for deciding whether review eligibility is met, completing the relevant review process and deciding whether the standard authorisation should remain in place or be terminated. They will record this information on pages 3 and 4 of the same form submitted to them by the managing authority.

A copy of the completed Form 10 must be provided to the managing authority and kept on the relevant person’s file.

If the standard authorisation remains in place, the supervisory body may decide to vary it to reflect any changes in circumstances. Any variations will be set out on page 4 of the form. The managing authority must make sure that individual care or support plans are updated accordingly to reflect the variations, and that staff are also made aware of the changes.

If the standard authorisation is terminated, the supervisory body must provide confirmation of this to the managing authority using an additional form - a ‘Standard Authorisation Ceased’ form. This should also be kept on the relevant person’s file.

If the supervisory body terminates the standard authorisation, the restrictions depriving the person of their liberty must end with immediate effect. The supervisory body should explain why they have terminated the standard authorisation, and offer advice about steps the service should take to provide less restrictive support.

The supervisory body will provide a copy of the completed Form 10 and the ‘Standard Authorisation Ceased’ form to the relevant person.

The managing authority (registered manager) must take reasonable steps to ensure that the person understands that the standard authorisation has been reviewed and what the effect of the variation/termination is.

To request a review of an authorisation granted by the Court of Protection (or any other court), the registered person should contact the public body that made the original court application. This is normally the local authority or ICB. They will decide whether to apply to the court for a review and, if so, make the necessary arrangements.

This section of the chapter only applies to authorisations under the DoLS framework.

The managing authority (registered manager) must complete a Suspension of Standard Authorisation Form if the relevant person becomes subject to restrictions under the Mental Health Act 1983, for example, if they are detained in hospital for assessment or treatment or if restrictions are imposed through a Guardianship or Community Treatment Order (CTO).

Form 7: Suspension of Authorisation

Please note, before downloading the form from the government website, check whether your local authority has its own version and process that they require you to use. Some local authorities have created a specific form for suspension of a standard authorisation.

If using the government form, the section relating to suspension of a standard authorisation must be completed. This is page 1.

There is guidance to support you to understand and complete the form:

The Mental Capacity Act Deprivation of Liberty Safeguards: Guidance to the Forms

The form must be submitted to the supervisory body in line with local processes.

The suspension comes into force as soon as the relevant section of the form is completed and signed by the managing authority.

No confirmation or authority is needed from the supervisory body.

A copy of the suspension must be kept on the relevant person’s file.

If, at any point in the 28 days after suspending the standard authorisation the relevant person is no longer subject to restrictions under the Mental Health Act 1983, the authorisation can be reinstated.

To reinstate the standard authorisation, the same form should be used. Page 2 should be completed with the first of the 2 available options selected.

As soon as the form has been completed and signed by the managing authority, the reinstated standard authorisation comes back into force. No confirmation or authority is needed from the supervisory body. A copy of the reinstatement must be kept on the relevant person’s file.

If, after 28 days, the relevant person is still subject to restrictions under the Mental Health Act 1983, the managing authority must advise the supervisory body of this and request that the standard authorisation be terminated.

To terminate the standard authorisation, the same form should be used. Page 2 should be completed with the second of the 2 available options selected.

As soon as the form has been completed and signed by the managing authority, the standard authorisation is permanently terminated. No confirmation or authority is needed from the supervisory body. A copy of the termination must be kept on the relevant person’s file.

Should the restrictions under the Mental Health Act 1983 be removed at any point after that, if the care or treatment can still not be provided without depriving the person of their liberty, a new standard authorisation request form must be completed.

See: The DoLS Process

This section of the chapter only applies when an authorisation has been made under the DoLS framework.

If a person dies during the period when a standard or urgent authorisation was in place, the managing authority must submit a notification to the local Coroner’s Office.

This must be done before the doctor has signed the death certificate.

The notification must be made on the government form:

Form 12: Notification of Death Whilst Deprived of Liberty

There is guidance to support you to understand and complete the form:

The Mental Capacity Act Deprivation of Liberty Safeguards: Guidance to the Forms

A copy of the form must also be provided to the supervisory body, any IMCA appointed to the relevant person and to every individual named as an interested person in the Best Interest Assessors original report.

Under Regulation 18 of the Care Quality Commission (Registration) Regulations 2009, the registered person must ensure that the CQC is notified whenever a person using the service dies.

See: Death of a person using the service – notification form

Under Section 21A of the Mental Capacity Act 2005, a person who is deprived of their liberty under the DoLS Framework has the right to have the arrangements reviewed by a court or tribunal. This is to ensure that their Human Rights are not breached. This involves an application to the Court of Protection, referred to as a ‘Section 21A Application’.

The application can be bought by the person being deprived of their liberty but can also be brought by the Relevant Person’s Representative (RPR). The person has access to legal aid to bring such an application.

Where the person is objecting to being deprived of their liberty, or to their current care arrangements and has not made an application then the Local Authority that granted the authorisation should be informed. For example, if a person with a DoLS authorisation in a care home wants to leave and go back to where they lived in the community. It is the expectation under the DoLS Framework that the Local Authority would then make an application.  

Last Updated: March 23, 2024

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