In situations that demand immediate action on behalf of a vulnerable person, and there is no time to waste, who has the legal authority to do so? It is fundamental for all care workers, nurses and social care professionals in the UK to understand who grants urgent authorisation for deprivation of liberty safeguards.

The ‘Deprivation of Liberty Safeguards’ (DoLS) are in place to safeguard a person who does not have mental capacity and who is living or receiving treatment in a care home or hospital. These are to ensure that any limitation on an individual’s liberty is legal, justified, and for the benefit of that individual. In the absence of this legislation, vulnerable adults might be restrained without any control or legal safeguards.

The DoLS process comprises key roles and legal procedures. They have different jobs for each stage, and it is important to perform the steps in order. If time is of the essence and an individual requires urgent protection, there is a provision for an urgent route. The urgent route is a short-term solution used to fill in the gap pending a full standard authorisation assessment and approval from the supervisory body.

This guide will provide clear thinking on the DoL’s urgent authorisation process, whether you are working in a care home, hospital, or an individual community setting. It’ll also ensure you understand your legal obligations and what to do to be on time.

Who Grants Urgent Authorisation for Deprivation of Liberty Safeguards?

Well, who grants urgent authorisation for deprivation of liberty safeguards? The answer lies with the managing authority. In most cases, it will be the care home or the hospital itself that is the managing authority. The registered manager of the care home concerned, or an NHS Trust responsible for the hospital, can grant an urgent authorisation if a person requires urgent care that restricts liberty and it is not possible to await a standard authorisation.

This may be a major misunderstanding that numerous care workers make. Urgent authorisation is not granted by the local authority or with input from any other authority. This is provided directly by the care home/hospital responsible for their care and treatment. The managing authority grants this authorisation on an appropriate form, which is then submitted to the supervisory body, typically the local authority where the individual lives.

But the managing authority may not rely solely on an urgent authorisation. The managing authority shall request a standard authorisation from the supervisory body when granting an urgent authorisation. Both actions must occur simultaneously to comply with the law. This is because the critical authorisation is temporary. It will not be the sole substitute for full formal authorisation, in which a formal assessment process with independent assessors takes place.

The managing authority must reasonably consider that a standard authorisation would be granted if a person applied for it in deciding to issue an urgent authorisation. They should also endeavour to obtain advice from the person’s family/carer, or friends, before authorising quickly. This consultation is relevant because it may be possible to avoid depriving the person of liberty, and others who know the person well may have ideas on how to do so. The authority responsible for management shall ensure that a written record is maintained of all actions taken and decisions made during this process.

What is a Deprivation of Liberty?

Before examining the DoLS process in detail, it is important to understand what constitutes a deprivation of liberty. The term applies where the movement of a human being is curtailed more than is normal during the human being’s care. The Human Rights Act 1998 (article 5) gives everyone the right to liberty and security. Any deprivation of liberty must be in a procedure provided for by law.

In 2014, the Supreme Court decision added what is referred to as the “acid test. There are two questions asked with this test. Firstly, can the person be monitored and controlled on an ongoing basis? Second, does the person have the freedom to leave the setting which provides care for them permanently? Where the answer to the first question is yes and the answer to the second question is no, it is highly likely that the person is deprived of their liberty. Then, the condition of deprivation must be legalised in the proper legal procedure.

Some of the following signs could indicate that a deprivation of liberty is occurring or is likely to occur. These include: frequent use of physical restraint or sedation to manage a person’s behaviour; keeping a person in a particular part of a care home or hospital; or not allowing them to walk around freely. There are also indicators from objections of family members or from the person themselves (where they have the capacity to object). In such instances, the care provider needs to act quickly and properly take the necessary action in accordance with the law.

Not all restrictions are a deprivation of liberty; it is essential to understand this. There can be many limits on what can be done to a person without exceeding the legal limit. If the level of restriction is high, if it is consistent and if it is not intended for the individual to leave permanently, then the legal duty to seek authorisation will apply. This threshold should be known to the care workers and managers, and they should know what to do next.

What is the Difference Between Urgent and Standard Authorisation Under Dols?

There are two types of authorisation within the DoLS framework: standard and urgent. Care workers and managers should be aware that they are different – each is used for a different purpose and has different legal requirements, timescales and conditions.

There is a standard authorisation that is used primarily to authorise a deprivation of liberty under DoLS. It is given by the supervisory body – the local authority. If a care home or hospital (the managing authority) believes that a deprivation of liberty is necessary for a person lacking capacity, it requests that the local authority make the decision. The local authority must then have 21 days to evaluate the request. It skips the in-house assessors and sends independent evaluators to verify the fulfilment of conditions for authorisation, which are made as many as six times. If all is found to be valid, the supervisory body issues a standard authorisation valid for up to one year.

Urgent authorisation is a temporary measure required when it is not safe or convenient to wait for the standard authorisation process to be completed. It’s not a decision made by the local authority but by the managing authority. It enables the care home/hospital to restrict a person’s liberty for up to 7 days whilst the standard authorisation procedure is carried out. At the same time, the managing authority needs to complete the appropriate form and send it to the supervisory body, along with a request to grant a standard authorisation.

There are four areas in which one can grasp the differences between the two types of authorisation. Firstly, by whom they are granted: by the managing authority, urgent authorisations, and by the supervisory body, standard authorisations. Secondly, their duration: urgent authorisations depend on the project duration, and standard authorisations can be up to one year. Thirdly, the process for making the assessment: standard authorisations involve a formal multi-assessor process, while urgent authorisations are based on the managing authority’s reasonable belief. Fourth, extension is allowed with urgent authorisation, or may be extended once for a further 7 days, subject to the supervisory body’s agreement. A standard authorisation is not renewable, and each application must be renewed.

Use of both types of authorisation shall be lawful and only when really necessary. It is illegal to deprive a person of their liberty without authorisation, and such a deprivation may violate their human rights. Care workers need to be knowledgeable of both routes and where they can be used and when.

What Conditions Must Be Met Before an Urgent Authorisation is Used?

The managing authority will not be able to decide to use an urgent authorisation lightly. Urgent authorisations may be lawfully used only if they comply with certain conditions and considerations. Managers and senior care workers may need to understand these conditions to make this decision in a real-life situation.

The First Condition: Reasonable Belief That Deprivation is Necessary and in the Best Interests

The first and most important is that the managing authority must have a reasonable suspicion that the person requiring deprivation of liberty must be deprived of liberty to receive treatment or care, and that the deprivation of liberty is in their best interests. It’s not a feeling, it’s a fact. Specific facts, observations, or clinical advice should be documented to justify the managing authority’s belief. It should also be reasonably assumed that if an authorisation is applied for, it would be issued. This will mean that that person fulfils the basic criteria under DoLs.

The Second Condition: Genuine Urgency

The second condition is that it is a genuine emergency. The urgency authorisation is necessary because there are times when a standard authorisation can’t be completed within 21 days. The managed person needs to be deprived of their liberty as soon as possible to prevent them from being harmed, and this must be demonstrated. The use of an urgent authorisation would not be appropriate or lawful if the situation were not urgent and in all other respects the managing authority could reasonably have applied for a standard authorisation in advance.

The Third Condition: Consultation With Family, Friends, and Carers

The third condition involves consultation. The managing authority should attempt to contact the person’s family, friends and carers to discuss the use of an urgent authorisation, unless there are reasonable grounds to believe that this is not advisable. They can sometimes identify options for a deprivation of liberty that a team may not have thought of, due to their knowledge of the person. Where consultation is not possible in advance of the use of the Urgent Authorisation, it shall take place as soon as practicable thereafter. A written record of all consultations and the results of those consultations must be made.

The Fourth Condition: Simultaneous Request for a Standard Authorisation

The fourth condition is that the managing authority must simultaneously request a standard authorisation from the supervisory body. This is a required provision, not a suggested one. Must submit the urgent authorisation and the standard authorisation request at the same time. The form for an urgent authorisation must be properly completed, and a copy forwarded to the supervisory body. If a request for it does not accompany the standard authorisation, then the use of the urgent authorisation may be challenged.

How Long Does an Urgent Dols Authorisation Last?

The most common enquiry about the DoLS process is how long an urgent authorisation will last. Awareness of the time limits is essential to the management of authorities, and if exceeded without an appropriate extension or standard authorisation, could constitute unlawful deprivation of liberty, which is a serious legal concern.

An urgent DoLS authorisation will not exceed 7 days from the date of issue. The idea behind these 7 days is that the supervisory body has sufficient time to consider the request for a standard authorisation. This is the time when the managing authority must ensure that the standard authorisation request has been made and that the supervisory body has received all the information it needs to start assessing the request.

Sometimes, the 7-day period may not be sufficient for the authorisation to be completed. This may be because cases are too complex, finding suitable assessors is difficult, or assessments are delayed. In this instance, the managing authority can request an extension from the supervisory body. The urgent authorisation, which may be repeated for a further seven days, if agreed to by the supervisory body, may be issued for a maximum of fourteen days.

This extension is not automatic, but rather runs as a separate process. It needs to be agreed by the supervisory body, and there needs to be a proper rationale for the absence of standard authorisation. Management must apply for an extension before the first 7 days have passed. Where there is neither an extension nor any standard authorisation after the urgent authorisation has expired, the deprivation of liberty is unlawful from the date of the expiry of the urgent authorisation onwards. As a result, it is essential for care workers and managers to closely monitor the timeline and take action at every stage of the process.

What is the Role of the Supervisory Body in the Dols Process?

The managing authority is at the heart of the DoLs process, making the initial request and granting urgent authorisations; however, the supervisory body also plays an important role. This will assist care workers and managers in appreciating the relationship between the two and how they work together to safeguard vulnerable people.

The supervisory body is the organisation that gives standard authorisations under DoLS. The supervisory body for care homes and hospitals is the local authority in which the person lives. This will typically be the local authority in which the care home or hospital is located, unless a different local authority funds the care. There are standard authorisation requests sent by managing authorities to the supervisory body, which decides on the appointment of independent assessors and on whether all legal requirements are met.

The supervisory body must assess a request to set up a standard authorisation within 21 days after the request was made. It selects at least two independent assessors – a mental health assessor and a best interests assessor. These assessors perform several tests to decide if the requirements for authorisation are met. The assessors should be separate from the care home/hospital making the request and should have received specific training.

The supervisory body is also the only body that can extend an urgent authorisation beyond the seven days. A request for an extension from the managing authority is reviewed by the supervisory body, which determines whether to grant it. It may provide an extension of up to 7 days. The supervisory body needs to be convinced that the managing authority is making reasonable efforts to advance the standard authorisation request and that there is a sound justification for the delay. If the supervisory body does not agree to the extension, or if the managing authority is not convinced of the need for the urgent authorisation, the managing authority must ensure that it is not used after the expiration date.

If a standard authorisation is given, the supervisory body shall notify the managing authority and the person concerned thereof in writing. It must also designate a representative to act on their behalf. It is normally a family member or a friend who represents. However, if no one is available or willing to serve in this capacity, the supervisory body shall pay someone, such as an advocate, to do so. This representative is an important person to ensure the person’s rights are respected during the authorisation period.

What Safeguards Are in Place Once a Dols Authorisation is Granted?

The DoLS framework doesn’t just allow the person’s liberty to be denied; it leaves the person unable to do anything about it. There are various legal measures in place to safeguard people who are under a DoLS authorisation. All of these safeguards are integral components of the legal system and must be familiar to all care workers or managers engaged in the process.

The First Safeguard: Multi-Assessor Evaluation

The first measure of protection is the multi-assessor evaluation in the process of obtaining a standard authorisation. There will be at least two independent evaluators of the person’s situation before a standard authorisation is given. The mental health assessor certifies that the person does have a mental disorder as defined in the Mental Health Act. The best interests assessor considers whether the deprivation of liberty is in the person’s best interests and, if it is, whether it is necessary and proportionate. This double assessment is a good protection against undue or unwarranted restrictions.

The Second Safeguard: Appointment of a Relevant Person’s Representative

The second measure is the appointment of a representative of a relevant person. The supervisory body is responsible for designating a representative of a person within the scope of a standard authorisation. This representative will have legal authority and may request a review of this authorisation at any time. If the person or their representative thinks the conditions for authorisation have changed, they can request that the supervisory body review it. This is to prevent the authorisation from being in place for longer than necessary.

The Third Safeguard: Right to Challenge in the Court of Protection

The third safeguard is that the authorisation can be challenged in the Court of Protection. The individual who has been deprived of their liberty, or the person on their behalf, can challenge a DoL in court. An authorisation can be reviewed and terminated by the Court of Protection if they see fit. This right of challenge is one of the essential legal safeguards to help ensure the DoLS process is overseen at the highest level.

The Fourth Safeguard: Access to an Independent Mental Capacity Advocate (IMCA)

The fourth safeguard is through the use of an Independent Mental Capacity Advocate (IMCA). If the person doesn’t have a family member or friend nominated to act on their behalf, and the supervisory body appoints someone to act as their representative, both the person and the representative have access to IMCA support. The IMCA is independent and can offer advice and support at every stage. IMCAs are among the most important groups in enabling persons who are unable to advocate for themselves to have a voice and have their rights respected.

When Can Dols Not Be Used?

It is essential to understand when DoLS cannot be used, as well as when it can. Inappropriate use of DoLS for purposes or in situations is not only ineffective, but can be illegal. Clear boundaries of the DoLS framework are needed for care workers and managers.

DoLS may ONLY be used in a Care Home or hospital. This may not be provided in a person’s own home, supported living arrangement or in any other community setting. Where the person who is lacking mental capacity is living in a community, and it is thought that they may be being deprived of their liberty, the right path to follow is to make an Application to the Court of Protection. The Court of Protection may permit the deprivation of liberty of people in places other than care homes or hospitals.

If someone is detained under the Mental Health Act 1983, then they cannot be deprived of liberty under DoLS. When a person is detained in a hospital under the Mental Health Act, its provisions apply. DoLs are not possible in a hospital environment where someone is under the Mental Health Act. However, any action taken by care workers needs to be double-checked to determine which legal framework applies.

DoLS must not be used to prevent the person from having contact with certain identified people, with whom it is considered the person would be at risk. If a care provider deems it in a person’s best interests to reduce their contact with an individual, they should apply to the Court of Protection to reduce that contact rather than use the DoLS framework. DoLS is not designed to resolve relationship or contact problems, but to prevent harm arising from the person’s care and treatment.

DoLS should not be only for the benefit of others, to protect them from the person who lacks capacity. The safeguards are to protect the person, not to suit the care placements or to protect others. DoLS is not the right route under the law if the only justification for depriving a person of their liberty is their own protection, or the protection of staff or other residents. Otherwise, the risk assessments, care plans, and, as needed, legal plans should be in place.

What Are the Liberty Protection Safeguards (LPS), and How Do They Differ From Dols?

The proposed replacement for the Deprivation of Liberty Safeguards is the Liberty Protection Safeguards (LPS). In May 2019, the Mental Capacity (Amendment) Act was passed, and LPS is a major improvement on the existing DoLS framework. Care workers and professionals should familiarise themselves with this imminent update and understand its impact on their work.

In DoLS, the local authority is the supervisory body, and only care homes and hospitals are subject to the process. The LPS system suggests a larger area. The waters of LPS would spill over from care homes and hospitals, to supported living, private homes and transport. A tremendous broadening that will impact many more professionals and care settings. In LPS, the term ‘responsible body’ depends on context and may refer to the local authority, the NHS, or the integrated care board.

The LPS also wants to reduce barriers and streamline the authorisation process. DoLS mandates that comprehensive assessments be conducted for each person’s case, regardless of complexity. The LPS is a multi-phased process designed to reduce red tape and paperwork for simpler cases, while maintaining safeguards for those with more complicated situations. For an LPS authorisation to be granted, there must be three key conditions: the person is unable to consent to the arrangements; the arrangements are necessary to prevent harm; and the arrangements are proportionate.

The DoLS framework is still in place, and the government are still rolling out the LPS. The LPS implementation date has been postponed since Act 9 of 2019 was passed. Care workers and managers should continue to use DoLS correctly in the interim and remain up to date on the progress of LPS implementation, using guidance from the Department of Health and Social Care and the Social Care Institute for Excellence (SCIE). DoLS and LPS training will become more crucial for the sector in the future.

Why Dols Training Matters for Care Workers in the UK?

Care workers in the UK are not allowed to choose whether or not to undergo training in DoLS or the Mental Capacity Act. It is a duty towards the profession and other legal aspects. Where care workers do not fully understand DoLS, they may not be aware when a DoL is occurring, may not apply for the correct DoL, or may incorrectly apply for an urgent DoL. All of these breaches may constitute an unlawful deprivation of liberty and are serious, as they violate a person’s human rights.

The Care Quality Commission (CQC) has a regular programme of checks to ensure that care homes and hospitals are correctly using the DoLS framework. Inspectors check the processes in place to ensure that staff know when and how to apply for urgent and standard authorisations, and that the rights of those subject to DoLS are respected. If an organisation does not demonstrate good practice for DoL, S, it could receive an action plan, an enforcement notice, and/or a rating that affects its operations.

As a manager, it is important to understand DoLS. A registered manager for a care home usually decides on their own whether to grant an urgent authorisation. It’s a big legal liability. Managers need to be confident in the process for DoLs, including what conditions must be met, which forms must be completed, and what their responsibilities are both in leading up to and following an urgent authorisation. It is important to get this right as it could negatively impact the person in care and the organisation.

Good DoLS training will also enhance practice across different areas of safeguarding. DoLS is part of the Mental Capacity Act 2005, which provides the framework for many aspects of the care sector’s response to decision-making for those who lack capacity. One of the advantages of having a care worker who understands DoLS is that they will have a stronger grasp of consent, best interests, capacity assessment, and the principle of least restrictive care. This wider knowledge and understanding result in improved and more person-centred care. So it is an investment in the quality and safety of care provision throughout the sector when investing in DoLS training.

FAQs

Conclusion

One of the most important pieces of knowledge a care professional can have is the understanding of who grants urgent authorisation for deprivation of liberty safeguards. It is the managing authority – the care home or the hospital – that is giving the urgent authorisation. But this should always be done alongside a simultaneous application by the supervisory body for a standard authorisation, and should be applied only if the conditions are met.

The DoLS framework is in place to uphold the rights and freedoms of some of the most vulnerable in our society. It guarantees that any interference with a person’s freedom is legal, justified, proportional, and not excessive. If used properly, it can offer a crucial legal safeguard. If not applied properly, or if it is not applied, it places individuals at risk of unlawful deprivation of liberty and organisations at risk of serious regulatory and legal liability.

As a care home manager, nurse, social worker, support worker, or any other role involved in caring for others, knowledge of DoLS is important for protecting the individuals for whom you provide care. It helps you and your organisation to get protected, too. Ensuring appropriate training and keeping your knowledge up to date, with guidance from the Department of Health and Social Care, SCIE, and the CQC, is essential. Never hesitate to ask for guidance if anything about the DoLS process is unclear: your manager, the organisation’s safeguarding lead, or a legal professional.