The Code of Practice for DoLS (2008) directs that wherever possible, DoLS authorisations should be applied for in advance of a hospital or care home admission, in order to ensure that appropriate safeguards are in place from day one. As such, a DoLS application should really be made at the point where the individual is assessed prior to admittance, in order that the application be processed in time.
DoLS application process
The DoLS application is made to the Supervisory Body (SB) via ‘Form 1: standard and urgent request’, available on the UK government website. This form allows for applications for either urgent authorisations (7-14 days only), or a standard authorisation (up to 12 months).
From this application, the SB will determine if the submission meets the required criteria.[1] The SB will also identify whether an Independent Mental Capacity Advocate (IMCA) is required, before completing the six separate assessments that are required as part of the DoLS process (see paragraphs 4.23 to 4.76 of the Code of Practice).
DoLS assessments
DoLS assessments should be completed within 21 days of referral, and should be conducted in line with the five core principles of the Mental Capacity Act. The six assessments are as follows:
1. Age
The age assessment is generally completed by the Best Interest Assessor (BIA), but can be determined by any person directed by the SB. The requirement for a standard DoLS authorisation is that the relevant person is 18 years or over. It is best practice to verify the relevant person’s age via a birth certificate or relevant care records.
2. No refusals
This assessment identifies whether there is any advanced decision in place, whether the person has established EPAs or LPAs assigned (and for what role), and/or whether a Deputy has been assigned.
These must be verified, to ensure that any EPAs/LPAs/Deputies are properly registered, while also checking the format of any advanced decision statement and what the decisions are.
Through this process, any conflict or over-riding direction must be identified, including objection to treatment. If there are any conflicts, these must be immediately reported to the SB, determining if a DoLS would still be required, and so proceeding via the Court of Protection (CoP) if appropriate.
3. Mental Capacity Assessment
The Mental Capacity Assessment is uniquely referred to by some as the Three Stage Test rather than the Two Stage Test or Assessment as noted within the Mental Capacity Act (2005). This is because Form 3 specifically sections off the Causative Nexus to its own stage.
This part of the process is also referred to as the Subjective Step, and must assess the specific decision to consent to care and treatment at the named nursing/care home or hospital. This is completed by the Best Interest Assessor (BIA) who must take due care to document appropriately and ensure the justification of outcome is clear, as well as actions taken to uphold the core principles of the MCA.
If the relevant person is found to have capacity, the process immediately stops and the SB must be informed in order to take the necessary steps as required. Meanwhile, if the relevant person is determined to lack capacity then the BIA proceeds to the Best Interest Assessment, while also exploring who the relevant person would wish to have as their representative (RPR) if they are able to express their wishes, and whether this RPR meets the criteria.
4. Mental Health Assessment
A Mental Health Assessment should be completed by the Section 12 doctor, who will determine if there is a impairment or disturbance of the brain that is directly impacting the decision making of the relevant person. This should further explore and document the evidence of impact (or possible impact) that a deprivation of liberty would have upon them. This is recorded as part of Form 2.
5. Eligibility
The eligibility assessment can be completed either by the Section 12 doctor or an Approved Mental Health Practitioner (AMHP), to determine if the person is actively under the Mental Health Act (1983, 2007) or if any legislation under said Act would be better suited to support and protect them.
6. Best Interest Assessment
The BIA will then assess the relevant person’s circumstances further, having regard for their care plans, notes, risk assessments, and other relevant documents. They should also seek to consult with all relevant persons, which may include staff, health professionals, family and friends. However, care must be taken to respect data privacy under GDPR and confidentiality.
From this process, the BIA must determine if the Acid Test (also known as the Objective Element) is met. If so, they must then determine if care and treatment are proportionate to needs, considering Type, Duration, Effect, Manner, Degree and Intensity (See the ‘Guzzardi case’, 1980).
In addition to which, they must weigh up all valid options for provision of care and treatment, summarising these factors within a balance sheet. From which, they must make a recommendation to the SB, in the balance of probabilities, if they think that a DoLS authorisation suitable, and if so, would they recommend any DoLS-specific conditions for the Managing Authority (MA).
What happens next?
Following submission of the six DoLS assessments, it is then the responsibility of the Supervisory Body (SB) to make the final decision whether to authorise the DoL, in which case, completing Form 5. It is also then the SB’s responsibility to request, and confirm consent from the RPR, and inform them of their responsibilities.
Learn more about DoLS
The DoLS process can be extremely confusing to an outsider. There is a lot of terminology to understand, and if you’ve not worked in the field before, it can be quite daunting to understand. Here at Mental Capacity Ltd, we have worked in the field of Mental Capacity for many years, and can provide bespoke training to help you and your team meet your statutory obligations. We can also provide consultancy services, and even carry out mental capacity assessments on your behalf. For more information on how we can work with you, please get in touch.
[1] If the application is made to the wrong Supervisory Body then the Code of Practice requires that the application be redirected to the correct authority.