Deprivation of liberty safeguards

Adults living in care home or hospital 

For those living in a care home or hospital, this organisation will need to contact the local authority that funds the person’s care or manages the care home.

An assessment process should be undertaken to check that the care arrangements in place are required and proportionate in keeping the person ‘safe’, and are in the person’s ‘best interests’. A person is then provided with safeguards once the process has been completed. These safeguards include:

• a Relevant Person’s Representative
• a right to challenge or appeal the arrangements in the Court of Protection
• a right to request support from a paid advocate
• a right to request a review of the authorisation

Adults living in their own home, tenancy or supported living accommodation

For adults living in their own home, tenancy or supported living accommodation, a public body such as the local authority will need to apply to the Court of Protection for an authorisation.

A care home or hospital (known as the managing authority) must let the local authority (supervisory body) know if they have identified that a person’s care means they are being deprived of their liberty.

Once we receive a referral, we arrange for:

1. A mental health assessor to complete an assessment to check whether the person has a mental disorder defined in the Mental Health Act. They will also make sure that the person is not already detained using the Mental Health Act instead of using the Mental Capacity Act and deprivation of liberty safeguards. A mental health assessor may be a GP or psychiatrist who has been given the relevant training to complete these assessments. 
    
2. A best interests assessor to look at whether the person lacks capacity to make a decision about the arrangements in place in the care home or hospital. A best interests assessor is usually a social worker, occupational therapist or nurse who has received the relevant training to complete the assessments. The best interests assessor will also check: 
   • whether the arrangements are in the person’s best interests, whether the arrangements are a ‘proportionate’ response to the risks if the person was not supported this way
   • whether there is someone who holds lasting power of attorney for health and welfare. Check whether they agree to the deprivation of liberty - called the ‘no refusals assessment
   • whether any ‘less restrictive’ options have been explored. This is to ensure restrictions do not negatively impact on a person’s human rights. Learn more about human rights in the Human Rights Inquiry document (Equality and Human Rights Commission website)
   • what a person’s wishes and feelings are, about the arrangements in place. They will also speak to those involved in a person’s care and who are important to the person, to gain their views on the impact of the arrangements on the person

The best interests assessor will speak to the person to identify a Relevant Person's Representative. If the person is unable to recommend someone, the best interests assessor can make that recommendation on their behalf. This could be a family member, relative or a paid advocate. 

Usually, a Relevant Person's Representative is a friend or family member who will make sure that the rights of a person are protected during a deprivation of liberty safeguards process. Where no friend or family member is willing or eligible, a paid representative will be appointed from an advocacy agency - details about our Cloverleaf Advocacy service can be found on our make your voice heard page.    

Rules for being a Relevant Person's Representative

There are rules as to who can be a Relevant Person's Representative. You must be: 

• 18 years of age or over 
• able to keep in contact with the relevant person
• willing to be appointed 

You must not be: 

• financially interested in the hospital or care home where the relevant person is being deprived of their liberty, or be a relative of a person who has a financial interest 
• employed by, or providing services to, the care home where the person lives 
• employed by the hospital where the person lives in a role related to their treatment or care 
• employed to work in the local authority in a role that is related to the person’s case 

You must be able to: 

• act in a person’s ‘best interests’ at all times 
• request a review of the deprivation of liberty safeguards authorisation when required 
• support the person to take an objection to the Court of Protection 

If you think that you may not be eligible to act as the Relevant Person's Representative for any reason, you must contact the supervisory body immediately. 

A person may verbally or physically (through their behaviour) express an objection to the care they receive or the place they live in. A case in the Court of Protection recommended considering the following, if you are a Relevant Person's Representative and want to determine whether a person is objecting: 

• whether there are possible reasons for the person’s behaviour 
• whether the person is being medicated for depression or being sedated 
• whether the person actively tries to leave the care home 
• whether the person makes preparations to leave, for example packing bags 
• the person’s behaviour and relationship with staff 
• whether there are any records of challenging behaviour and the triggers for such behaviour 
• whether the person’s behaviour is a response to particular aspects of the care arrangements or to all of those arrangements 

You can find out more on the Mental Capacity Law and Policy website. 

An objection could lead to a deprivation of liberty safeguards authorisation being challenged on the person's behalf in the Court of Protection.  

If a person is suspected to be deprived of their liberty in a care home or hospital, the care home or hospital must complete the following form to request an assessment: 

Request a deprivation of liberty safeguards assessment