Part 1 of this article introduced the new legal concept of Deprivation of Liberty (“DoL”).  In Part 2 I shall explain how a care home may obtain authorisation to deprive a resident of his/her liberty.  

The Authorisations
It may be a comfort to know that the ultimate responsibility for deciding whether DoL is necessary, rests with the appropriate local authority (known as the “Supervisory Body”) in whose area the resident lived, or where the care home is if there was no fixed address. That comfort, however, is tempered by the fact that it is the responsibility of the individual care home (known as the “Managing Authority”) to ensure that a resident is not deprived of liberty without lawful authorisation.
Authorisation is achieved ultimately by a Standard Authorisation issued by the local authority. However, in an emergency, the care home management can issue a short term Urgent Authorisation. There are standard forms for making all the necessary applications in relation to DoL. They are all available on the Web from many sites. I would, however, recommend the site of the Sheffield City Council. Not only does it provide all the forms but also standard letters to accompany each form.

The Standard Authorisation
Before the local authority can issue a Standard Authorisation it must ensure that six requirements are all satisfied.  If they are not then the authorisation must be refused.  The requirements are explained in the Guide the “Deprivation of liberty safeguards” published by The Stationary Office and to which you must “have regard”.
Unless an Urgent Authorisation has been issued (see next column) the Standard Authorisation must be issued within 21 days of receipt of the application. It can authorise DoL for a maximum of 12 months and it can impose conditions as to how the DoL regime is to be managed.

Renewal, Review and Objections
The care home may apply for a renewal of the Standard Authorisation when it is about to expire. It must also keep the DoL regime under review at all times and if it becomes apparent that the authorisation is no longer necessary or necessary in its present form, then the care home must apply to the local authority to review the authorisation to see if it should be modified or withdrawn.
If a resident or any proper person on his/her behalf believes that that resident is being deprived of liberty without proper authorisation then that challenge is made first to the care home. If the care home agrees with that challenge, then within 24 hours it must either apply for a Standard Authorisation or change the regime. If it does neither, then the matter can be raised directly with the local authority who must then investigate the challenge and take the appropriate action.

Urgent Authorisations
A Standard Authorisation may be applied for, not only for existing residents, but also for residents about to come into the care home. However, if, in the opinion of the care home, the DoL regime needs to be imposed within 28 days, then the care home itself must issue an Urgent Authorisation, which allows it to operate a DoL regime for a maximum of 7 days. If a Standard Authorisation has not already been applied for, then on the issue of an Urgent Authorisation, an application for a Standard Authorisation must be made. Upon receipt of an application for a Standard Authorisation, when an Urgent Authorisation is in force, the local authority must complete the application process within 7 days although it has the option in “exceptional circumstances” to agree an extension of the Urgent Authorisation for a further 7 days.

When not to apply
The Guide emphasises that before issuing an Urgent Authorisation and thus triggering an application for a Standard Authorisation, the Care Home must have a “reasonable expectation” that the six requirements will be met. It also emphasises the “vital importance” of involving family, friends and carers in the decision making process.

Conclusion
There have been far fewer applications for a Standard Authorisation than I at least, thought likely when the new procedure came into force in April 2009.  That may be because care homes are following the Guide and always looking for less restrictive regimes than a DoL regime. However, it may be because care homes are not yet fully familiar with the new requirements and are unknowingly depriving residents of liberty without obtaining the necessary authorisation. I would suggest therefore, that care homes should undertake an immediate review of the regimes under which residents are living to satisfy themselves either that no DoL situation has arisen, or if it has, then to make immediate application for Standard Authorisation, if necessary supported by an Urgent Authorisation. Failure to do so may leave care homes vulnerable to claims for damages, criminal prosecutions, CQC interventions or even de-regulation.

David Goldman is a Consultant at Matthew Arnold & Baldwin LLP
www.mablaw.co.uk