Demystifying Court of Protection and Deprivation of Liberty Safeguards for Care Home Managers

1. If a person has dementia and are compliant with their daily prescribed medication and if you do not give it to them, they may not ask for it. Do we need to do capacity assessment for this as I have seen some assessments completed because the resident is unable to manage their medication.

Yes you will need a capacity assessment to determine if a resident has capacity to refuse medication. If your resident has capacity and can agree and consent to medication (or equally refuse to take it) , then that’s the process to follow. If however, the resident lacks capacity, then you can make the decision in the best interests of the resident without having to go to court. If, however, you are verging into the realms of covert medication, then we recommend seeking legal advice as it’s a grey area and we’d look to seek court authorisation to take this step.

2. There was talk about extending Dols applications for longer than 1 year as often we have to reapply and there are no changes.

DOLS has been criticised from inception and branded as unworkable for years. The Government went out to consultation for the new Liberty Protection Safeguards, but these reforms have been kicked into the long grass by the government for now. The new LPS would cover 16–17-year-olds and the supported living sector.  In terms of making further applications beyond the year, the aim is to ensure that individuals are not deprived of their liberty for longer than is reasonably necessary and to cover potential improvement. There is a balance to be struck but we appreciate it can create an extra bureaucratic burden for care providers.

3. We find the LA so slow at times that we are ‘renewing’ at one year before the council has responded to the first standard authorisation.

That is a problem we are aware of.

4. What are the options if you’re not able to manage the disruptive resident?

If you’re unable to manage the disruptive resident do contact the local funder whether that is the LA or the NHS and make that very clear and serve contractual notice which is 28 days. It is very important that as you soon as you know the placement has become untenable and unsafe you serve notice in writing. If you get push back, then seek early legal advice.

5. Does our care home need to review its DOLS processes and training and how do we evidence compliance with Mental Capacity Act during CQC inspections?

Yes, the CQC are interested in how care homes and its staff follow the DOLS processes and understand the Mental Capacity Act. For example, evidencing that you have thought about DOLs and follow the MCA guidance is a good starting point for demonstrating your thinking.

6. How do you manage residents where there is an application to Court but no final decision been made?

In uncontested cases, the Re X / standard authorisation procedure is followed where the care home would seek an authorisation and where lawyers are not involved. We are aware that there are delays obtaining authorisations. In theory if you’ve gone beyond 14 days allowed on an urgent authorisation then you don’t have authorisation. Contested applications are managed differently – in these cases the court can grant an interim order which will give authorisation within days to approve the deprivation pending a full hearing.

7. What are the consequences if residents don’t have proper authorisation?

This would constitute false imprisonment and in certain circumstances the resident/patient can claim compensation, but there are very few cases. Generally modest damages are awarded by the courts because the person would have had to be in the same place anyway and it is only the lack of process (ie they would not have been “free” regardless of the process) but sometimes larger awards are made by Courts to set an example eg sending a message if there has been huge delays.  It is something that the CQC are becoming more interested in.