The Power of any Eligible Person to Request a Deprivation is Considered

1. The Power of any Eligible Person to Request a Deprivation is considered

Any eligible person (a person who is not the managing authority of the care home or hospital) can approach the supervisory body if they feel that a person who is aged 18 or over;

  1. Is detained in a hospital or care home; and
  2. Is unable to consent to their care or treatment; and
  3. Is likely to meet the qualifying requirements under DoLS; and
  4. The care home or hospital have been advised of this and asked to request a standard authorisation; and
  5. The care home or hospital has failed to request a standard authorisation.

2. Receiving a Request for a Deprivation to be considered

Upon receiving a request for a deprivation to be considered the supervisory body must appoint a suitable person to confirm whether the person is detained and whether the qualifying requirements are likely to be met unless;

  1. It appears that the person making the request is ‘frivolous’ or’ vexatious’; or
  2. The question of whether there is a deprivation of liberty has already been answered through a previous DoLS assessment process; and
  3. There have been no changes in circumstances.

If the supervisory body appoint a person that person must be able to carry out any subsequent qualifying assessments that may be required.

The following people must be notified by the supervisory body that a request has been made to decide whether there is an unauthorised deprivation of liberty, the outcome of that request and the name of anyone appointed;

  1. The eligible person who made the request;
  2. The relevant person to whom the request relates;
  3. The managing authority of the care home or hospital named in the request; and
  4. Any section 39D IMCA.
The Acid Test

The Acid Test (defined in the case of Cheshire West) sets out the 3 conditions that must always exist in order for a detained person to be deemed deprived of their liberty;

  1. They are subject to continuous supervision and control; and
  2. Not free to leave the place in which they are detained; and
  3. The care and treatment being received is imputable to the state (the responsibility of the state to provide).

The supervisory body is required to keep written records of all requests to consider deprivations, and the outcome of such requests.

3. Powers of the Suitable Person

To enable the suitable person to consider the deprivation, they have powers to;

  1. Examine and take copies of relevant health records;
  2. Examine and take copies of any relevant record of the Local Authority (in respect of Adult Care and Support or Children’s Services functions);
  3. Examine and take copies of any relevant records held by a registered service provider.

4. The Timeframe to make a Determination

A determination must be made within 7 days from the date that a request to consider a deprivation is made by an eligible person.

5. Deciding the Outcome

The suitable person must take into account any submissions made, or information given by the following people when making a determination;

  1. Any Relevant Person’s Representative (RPR);
  2. Any section 39A IMCA;
  3. Any section 39C IMCA; and
  4. Any section 39D IMCA.

6. Written Records

The suitable person must make a written record of any assessment carried out to determine whether the person is being deprived of their liberty. This must be provided to the Local Authority who must in turn provide a copy to;

  1. The relevant person;
  2. The Relevant Person’s Representative (RPR);
  3. The managing authority of the care home or hospital; and
  4. Any section 39A IMCA.

7. Action if the Relevant Person is detained

The supervisory body must treat the outcome as a request for a standard authorisation when it determines;

  1. That the relevant person is detained (deprived of their liberty); and
  2. The person is likely to meet the qualifying requirements; and
  3. There is no standard or urgent authorisation in place.

The supervisory body must notify;

  1. The eligible person who made the request;
  2. The relevant person to whom the request related;
  3. The managing authority of the care home or hospital named in the request; and
  4. Any section 39D IMCA.

The suitable person must then carry out further assessments as required to confirm whether the qualifying requirements are met and a standard authorisation can be granted. The timeframe for carrying out these additional assessments is no more than 21 days from the date that the outcome was reached.

8. Action if the Relevant Person is not detained or there is an Existing Authorisation

No further action under DoLS is required when;

  1. The relevant person is not a detained resident; or
  2. The person is a detained resident but there is already a standard or urgent authorisation in place.

In either instance the Local Authority must notify the following people of the outcome;

  1. The eligible person who made the request;
  2. The relevant person to whom the request related;
  3. The managing authority of the care home or hospital named in the request; and
  4. Any section 39D IMCA.

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