What is Standard Authorisation DoLS?
A Standard Authorisation is used to lawfully deprive someone of their liberty in order to care for them.
What does it mean if someone is deprived of their liberty?
This occurs when:
- They are under continuous supervision and control;
- They are not free to leave the place they are in;
- and that person lacks the capacity to consent to these arrangements.
Special safeguards are needed if a person is to be deprived of their liberty. These are called the Deprivation of Liberty Safeguards (otherwise known as DOLs), and can only be used if the person will be deprived of their liberty in a care home or hospital.
Now, before someone can be lawfully deprived of their liberty, the care home or hospital where they are staying must get permission from the relevant authority (most commonly the local authority). This is called applying for a standard authorisation and it will only be given if it assessed to be in the best interests of the person who lacks capacity.
If a standard authorisation is given, it will do 3 things:
- firstly, name the place that the person without capacity is to be looked after;
- secondly, say for how long it will last (most commonly up to 1 year);
- and thirdly, it may attach conditions, such as that the person will have access to the community.
If used correctly, a standard authorisation under the Deprivation of Liberty Safeguards is there to protect vulnerable adults who lack the capacity to make a decision about where they should be living, in circumstances where they are deprived of their liberty.
If a standard authorisation is given, one key safeguard is the right to challenge the authorisation in the Court of Protection.
How to challenge a Standard Authorisation
Do you know someone who is currently in a care home or hospital and objects to being there? Do they lack the capacity to make a decision about where they should be living?
A standard authorisation is a lawful way to deprive somebody of their liberty to care for them in a hospital or care home when they do not have capacity to decide themselves where to live.
However, where a standard authorisation is in place, one key safeguard is the right to challenge it in the Court of Protection.
When would you want to challenge the Standard Authorisation?
Firstly, a family member of the person may not be happy with where they are staying. For example, someone has been placed in a care home, but the family in fact believe that it is in their best interests to be cared for at home. Secondly, the person who lacks capacity themselves may show a consistent wish to leave the place where they are staying. Though remember, their objection may not always be verbal, but could in fact be demonstrated through their actions, for example by trying to leave.
How can this challenge be brought?
To challenge the standard authorisation an application must be made under s.21A of the Mental Capacity Act 2005.
Who can bring the challenge?
In general, there are 3 people who can:
- Firstly, an application can be made by the person who lacks capacity themselves;
- Secondly, and more commonly, this can be done on their behalf by their relevant person’s representative (their RPR). This is often a friend or family member, but can also be an independent advocate; or
- Thirdly, the relevant local authority can also issue proceedings, asking the court to review a standard authorisation.
If a challenge does need to be brought (for example because the person is consistently objecting), and if there are no friends or family members able or willing to make an application, and the RPR has not made an application either, then the responsibility will fall on the local authority.
The Courts Powers (under s.21a MCA)
If you successfully challenge someone’s deprivation of liberty under a standard authorisation in the Court of Protection, what powers does the court have?
In general, the court can do 3 things:
- Firstly, it can vary the standard authorisation. This means that the court is able to determine questions regarding
- The period of the authorisation (i.e. how long it will last);
- The purpose or reason why it was given; or
- The conditions attached to it. For example, it may add a condition such as that the person must be allowed to access the community at least once a week.
- Secondly the court has power terminate the standard authorisation. This may be because the SA is found not to be in the detained person’s best interests, and therefore they should be allowed to live elsewhere
- Thirdly, and finally, the court also has the power to make a declaration regarding the person’s capacity. This means that it may find that in fact the person does or does not have capacity to make a specific decision, for example, a decision regarding where they wish to live, or the care they are receiving.
Can I get Legal aid to challenge a Standard Authorisation?
Is someone you love detained in a care home or hospital against their wishes? Do you want to challenge this but don’t know if you can afford to?
Once you understand how to challenge someone’s deprivation of liberty under a standard authorisation in the Court of Protection, when a person lacks the capacity to make the decision about where to live themselves, the next logical step is to see if and how you can fund this challenge with legal aid.
How can you fund your challenge to somebody’s standard authorisation?
As this area of law concerns somebody being deprived of their liberty, potentially against their wishes, legal aid is available to challenge it.
Importantly, this legal aid could be non-means tested, which means that you would not have to earn under a certain threshold in order to be eligible, but that you could get legal aid regardless of what you earn or what savings you have, however high or low. However, note that this non-means tested legal aid is only available if you are the detained person themselves (i.e. the person who lacks capacity) or their relevant person’s representative (their RPR).
If you are not the detained person or their RPR, then you will only be eligible for means-tested legal aid. This means you will need to meet certain income and capital thresholds.
Whether you can get non-means tested, or means-tested legal aid, in both cases you will have to satisfy a merits threshold as well. This means that your case will have to have valid grounds to be brought, in other words, about a 60-80% chance of success.
Usually in such cases, this element is quite easy to demonstrate. Depriving someone of their liberty is a serious matter, and it will almost always be in someone’s best interests to check that this deprivation is lawful, particularly if they are objecting to where they are staying.
Finally, please note that the Deprivation of Liberty Safeguards scheme is due to change, and will be replaced by the Liberty Protection Safeguards, but at the time of writing no date has been set for this change to take place.