How Long Can a Deprivation of Liberty Be Authorised For?

The Deprivation of Liberty Safeguards (DoLS), enacted under the Mental Capacity Act 2005 (MCA 2005), provide a legal framework to protect individuals who lack mental capacity to make decisions about their care and residence, where care arrangements amount to a deprivation of liberty. These safeguards are particularly relevant in clinical negligence claims, personal injury litigation, Criminal Injuries Compensation Authority (CICA) matters, and inquests, where alleged failures in their application or challenges to their appropriateness may form the basis of a claim or investigation.

For legal practitioners, understanding the nuances of DoLS authorisation, review periods, and associated medico-legal implications is essential. This article explores the clinical and legal frameworks surrounding DoLS, the duration of authorisation periods, and the role of specialist expert witnesses in these complex cases.

Understanding Deprivation of Liberty Safeguards: The Clinical and Legal Framework

The primary purpose of DoLS is to provide a legal framework for authorising a deprivation of liberty in a hospital or care home, ensuring such deprivation is lawful and subject to regular scrutiny. The Supreme Court judgment in P v Cheshire West and Chester Council [2014] UKSC 19 established the ‘acid test’ for determining whether a deprivation of liberty exists: an individual is deprived of their liberty if they are under continuous supervision and control, are not free to leave, and lack the mental capacity to consent to these arrangements.

The MCA 2005, which underpins DoLS, operates on five core principles:

1. Assume a person has capacity unless it is established they do not.
2. Do not treat a person as unable to make a decision unless all practicable steps to help them do so have been taken without success.
3. An unwise decision does not mean a person lacks capacity.
4. Any act done or decision made under the Act for a person who lacks capacity must be in their best interests.
5. Before doing an act or making a decision, consider whether the purpose can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Clinical assessments central to DoLS include the mental capacity assessment, mental health assessment, eligibility assessment, no refusals assessment, and a comprehensive best-interests assessment. Expert opinion in medico-legal cases frequently scrutinises the quality and thoroughness of these assessments, particularly the determination of capacity and best interests. While psychiatrists are often central to these evaluations, neurologists, geriatricians, general practitioners, and learning disability specialists may also contribute to understanding conditions affecting capacity or necessitating restrictive care.

Authorisation Periods: How Long Can a Deprivation of Liberty Be Authorised?

The duration for which a deprivation of liberty can be authorised depends on the specific circumstances and type of authorisation.

• Standard Authorisation: A standard authorisation under DoLS can be granted for a maximum period of 12 months. This period is determined by the supervisory body (usually the local authority) based on the individual’s anticipated needs and the likelihood of their circumstances changing.
• Urgent Authorisation: In situations where a deprivation of liberty is required immediately to prevent harm and there is insufficient time to obtain a standard authorisation, an urgent authorisation can be issued by the managing authority (the hospital or care home). This initial urgent authorisation lasts for a maximum of 7 days. It can be extended for a further 7 days, up to a total of 14 days, if a standard authorisation is being sought and not yet granted.
• Renewal: If a deprivation of liberty continues to be necessary after the initial standard authorisation period, a review and reassessment process must be undertaken. A new standard authorisation can then be granted for a further period, typically up to 12 months. Shorter periods may be authorised if it is anticipated that the person’s circumstances or capacity may change sooner.
• Court of Protection: For deprivations of liberty in settings not covered by DoLS (e.g., supported living, private homes) or for complex cases where there is disagreement, the Court of Protection has the power to authorise a deprivation of liberty for specific periods. These orders can sometimes exceed 12 months, depending on the enduring nature of the individual’s needs and capacity. The Court also provides an avenue for challenging existing DoLS authorisations, notably via s.21A MCA 2005 applications.

In clinical negligence and human rights claims, alleged failures to seek authorisation, inappropriate authorisation, or delays in review and renewal processes are frequently examined. Such failures may constitute a breach of statutory duty and human rights, potentially giving rise to claims for damages.

Legal Implications and Disputes in Litigation

Cases involving Deprivation of Liberty Safeguards carry significant legal implications. Expert evidence is crucial across various legal proceedings:

• Clinical Negligence: Allegations of breach of duty may arise from a failure to adequately assess capacity, a failure to apply for DoLS where appropriate, or an inappropriate or overly restrictive DoLS application. The Bolam v Friern Hospital Management Committee [1957] and Bolitho v City and Hackney Health Authority [1998] tests are applied to determine whether the actions of healthcare professionals fell below a reasonable standard of care.
• Causation and Harm: Establishing causation requires linking any alleged breach to the harm suffered by the claimant, which may include psychological distress, loss of autonomy, or prolonged unlawful detention. Principles from Bailey v Ministry of Defence [2008] and Williams v Bermuda Hospitals Board [2016] on material contribution are relevant where multiple factors may have contributed to harm.
• Human Rights and Unlawful Detention: Unlawful deprivation of liberty often engages Article 5 of the European Convention on Human Rights, giving rise to claims for damages for the period of unlawful detention.
• Inquests: Where a death occurs whilst a person is subject to DoLS, or where the necessity for DoLS arose from alleged care failures, coronial investigations under the Coroners and Justice Act 2009 often scrutinise the DoLS process. Expert evidence may assist the coroner in understanding the clinical decisions and their implications for patient safety.
• Limitation: The Limitation Act 1980 is a significant consideration, particularly section 28, which allows for the postponement of the limitation period for those without mental capacity.

The Role of the Expert Witness in Deprivation of Liberty Cases

Expert witnesses provide objective, independent opinion to assist the court in understanding the clinical aspects of DoLS cases. Their role includes:

1. Reviewing Records: A thorough review of medical and care records is fundamental. This includes all DoLS forms (e.g., Form 1, 3, 4, 5, 6), mental capacity assessments, care plans, best-interests meeting minutes, and clinical notes.
2. Capacity and Best-Interests Opinion: Consultants, particularly psychiatrists, geriatricians, or neurologists, will provide opinion on the accuracy of capacity assessments and whether the decisions made were in the individual’s best interests, considering the least restrictive option.
3. Breach and Causation Analysis: Experts will comment on whether the managing and supervisory authorities adhered to their statutory duties and clinical standards concerning DoLS application, authorisation, and review. They will also address whether any alleged failings caused or materially contributed to the claimant’s harm.
4. Condition and Prognosis: In cases where quantum is disputed, experts can provide condition and prognosis reports, assessing the claimant’s current mental and physical state, their ongoing capacity, and future care needs, which may still involve a deprivation of liberty.

Cases involving DoLS are often complex. For example, a patient with a severe acquired brain injury (requiring a neurologist’s input) may also develop psychiatric comorbidities impacting capacity (requiring a psychiatrist), alongside general frailty and complex care needs (requiring a geriatrician). Multi-disciplinary expertise ensures all relevant clinical perspectives are covered, streamlining the instruction process for solicitors and enabling comprehensive expert reports.

Practical Guidance for Solicitors

For solicitors handling cases involving Deprivation of Liberty Safeguards, several practical steps can optimise the medico-legal process:

• Early Instruction: Engage expert witnesses early in the claim lifecycle, perhaps initially for a screening report, to assess the merits and identify key areas of dispute.
• Comprehensive Disclosure: Provide the expert with a complete set of records, including all DoLS paperwork, mental capacity assessments, care plans, clinical notes, and statements from family members or advocates. Missing documents can significantly delay the expert’s opinion.
• Precise Questions: Frame clear, concise questions for the expert, specifically addressing breach of duty, causation, quantum, and any human rights implications.
• Subspecialty Matching: Carefully consider the specific clinical aspects of the case. While a psychiatrist is often the primary expert for capacity, other specialists like neurologists (for cognitive impairments), geriatricians (for complex older adult care), or paediatricians (for children’s cases) may be essential for a complete picture.
• Anticipate Challenges: Be prepared for differing expert opinions on capacity and best interests. Expert joint statements are crucial for narrowing issues and clarifying points of agreement and disagreement.

Navigating the legal and clinical complexities of Deprivation of Liberty Safeguards requires a detailed understanding of statutory frameworks and clinical practice. Specialist medico-legal expertise is often critical to achieving favourable outcomes for claimants or mounting a robust defence. Multi-disciplinary medico-legal chambers offering matched subspecialist expertise can be pivotal in cases of this nature.