Mental health law briefing 192 – Applying for a DoLS authorisation: new roles post April 2013
A managing authority (i.e. care home or hospital) has responsibility for applying for authorisation of deprivation of liberty for any person who may come within the scope of the Deprivation of Liberty Safeguards (DoLS). The managing authority must apply to the supervisory body for authorisation.
A supervisory body is responsible for considering requests for authorisations, commissioning the required assessments and, where all the assessments agree, authorising the deprivation of liberty.
Who is the appropriate supervisory body?
- Where the deprivation of liberty safeguards are applied to a person in a hospital situated in England, the supervisory body will be:
- if a PCT commissions the relevant care or treatment (or it is commissioned on the PCT’s behalf), that PCT,
- if the Welsh Ministers or an LHB commissions the relevant care and treatment in England, the Welsh Ministers, or
- in any other case, the PCT for the area in which the hospital is situated.
- Where the deprivation of liberty safeguards are applied to a person in a hospital situated in Wales, the supervisory body will be the Welsh Ministers or an LHB unless a PCT commissions the relevant care and treatment in Wales, in which case the PCT will be the supervisory body.
- Where the deprivation of liberty safeguards are applied to a person in a care home, whether situated in England or Wales, the supervisory body will be the local authority for the area in which the person is ordinarily resident. However, if the person is not ordinarily resident in the area of any local authority (for example a person of no fixed abode), the supervisory body will be the local authority for the area in which the care home is situated.
The arrangements after April 2013
PCTs are due to be abolished on 1st April 2013. After this date, managing authorities that are hospitals should apply to local authorities for DoLS authorisations, as local authorities will be taking on the supervisory body function from PCTs.
As a result of this change, local authorities will be the only supervisory bodies. They will be the only organisation authorising and assessing deprivations of liberty outside the Court of Protection.
Funding of £5.4 million is being made available to local authorities to support them in extending their statutory role and to enable them to assess and authorise DoLS in hospitals.
However, hospitals will remain responsible (as managing authorities) for compliance with the DoLS legislation and ensuring that all staff comply with the Mental Capacity Act (MCA). They must ensure they have a good understanding of their statutory responsibilities as set out in the MCA and DoLS, including making relevant and timely referrals to supervisory bodies and adhering to any DoLS conditions set.
Clinical Commissioning Groups will be responsible for commissioning MCA-DoLS compliant hospital care and will be responsible for ensuring that hospitals meet their statutory responsibilities to the millions of patients who are without capacity to consent to care and treatment.
We offer comprehensive training sessions on both the MCA and DOLS. If you would be interested in arranging this for your staff, please contact Andrew Parsons at firstname.lastname@example.org
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.