Under DoLS, the Managing Authority (MA) is the nursing/care home or hospital providing (or going to provide) care and treatment for the relevant person. The responsibilities of the MA are outlined within the Code of Practice for DoLS (2008) and expanded on through Court of Protection (CoP) case law.
These documents require that the Managing Authority carry out its responsibilities with due care and diligence, with appropriate consultation. All decisions and actions taken should be fully documented as part of professional best practice.
Responsibilities of the Managing Authority
- ‘The MA need to adapt their care planning processes to incorporate consideration of whether a person has capacity to consent to the services which are to be provided and whether their actions are likely to result in a DoL’ (checklist, following section 11 in the code of practice).
- To apply for a DoLS authorisation for any individual under their responsibility who ‘may come within the scope’ of this safeguard (3.1), completing the Form 1 and sending to the Supervisory Body (SB) (3.8).
- That this should be decided upon whether:
- A DoLS is ‘necessary’, considering if all ‘practical and reasonable steps to avoid a DoL’ have been taken.
- Review of the case and care in place.
- Identify who in the MA should take the necessary steps to apply (3.6).
- That the MA is ‘responsible for ensuring that it does not deprive a person of the liberty without an authorisation’, that they ‘must comply with the law in this respect’. By this meaning that any restrictions must not continue or commence without a DoLS in place. (5.20)
- The MA must keep records of urgent (6.8) or standard authorisations given.
- If considering ‘DoL in an emergency and giving an urgent authorisation, they must as far as is practical and possible, take account of the views of anyone engaged in caring for the relevant person or interested in their welfare’ (6.11). That this should be recorded, along with the relevant person’s views (6.12). That the decision maker at the MA ‘will need to be able to show that they have made a reasonable decision based on their professional judgement and taking account of all relevant factors’ and should therefore be taken at a senior level.
- ‘The MA must take all practical and possible steps to ensure that the relevant person understands the effect of the authorisation and their rights around it’. This includes: rights to a review, the impact of the authorisation, informal and formal complaints procedures, right to apply to the Court of Protection to challenge the DoLS, and right for an Independent Mental Capacity Advocate (IMCA) (3.15, 5.8, 7.4, 7.5).
- The MA must give a copy of the authorisation to the relevant person and any instructed advocate (6.27).
- Must have regard for any conditions directed within the authorisation, applying in practice to uphold the person’s rights (checklist, following section 11 in the code of practice).
- Continually apply the Principles of the Act, including supported capacity in line with the Mental Capacity Act (MCA, 2005).
- If any changes to the relevant person’s restrictions and restraints in place occur, or relevant circumstantial changes such as admission to hospital or regained capacity, then the Relevant Person’s Representative (RPR), should be informed. Further, the MA must request a review if it appears that one or more of the qualifying requirements is no longer met (8.5), and/or taking relevant actions to cease the DoLS or otherwise, as suitable to the case (8).
- If the DoLS authorisation ceases for any reason, such as relocation of person to another residence, long term admission to hospital for care and treatment, the relevant person’s death or otherwise, the Supervisory Body (SB) and RPR must be informed (8).
- If the MA has concerns about the RPR, in terms of applying the principles of the MCA (2005), frequency of visits or otherwise believe that they need support to fulfil their role, then these concerns should be reported to the SB.
While we have outlined some of the key responsibilities in this blog, others do also exist and we encourage readers to consult the full Code of Practice for further detail. We also recommend professionals keep a track of updates to case law. These can often be found via legal professionals working within the field (such as 39 Essex Chambers), or professional Mental Capacity training providers such as ourselves. It is also useful to sign up to industry newsletters and updates where possible, to ensure you keep abreast of the latest developments in the area.