My partner had a DoLS due to expire on 4 July 2026. Following s21A proceedings, the Court of Protection authorised an extension of the DoLS to 4 January 2027. The case has since been concluded
The LA has subsequently reviewed and removed the DoLS, saying he’s no longer eligible, while the care home has written to me saying he is still currently under a DoLS.
The care home where he’s a resident won’t tell me what restrictions he is subject to, stating confidentiality concerns. How can I challenge the BIA decision to end the DoLS without access to a care plan, or knowledge of restrictions in place? What safeguards are available to him with this level of uncertainty about the status of the deprivation of liberty?
Can anyone advise if this should be raised as a safeguarding concern, and what would be an appropriate route forward now the Court case is closed?
There are several routes, although I don’t want to ask personal questions about your partner and the prior rationale for the DoLS at the care home, so will give scenarios instead. In this scenario I’m assuming you are undisputed next of kin and have consent to support your partner in this matter. From an MCA point of view there is always a lawful assumption a person has capacity unless there is reason to doubt and capacity in a given area is assessed as not being held, but capacity is always time and decision-specific. It is important to consider capacity and consent in any access to information situation. A person can regain capacity and take over their decisions.
You may be aware of the recent change in law around DoLS, which is causing some confusion, and it is important to challenge cases where a person would still meet the new criteria for Deprivation of Liberty Safeguards in law. It’s not enough in itself to remove a DoLS just because court proceedings have concluded. The position still has to be assessed.
If the court has ordered an extension or in the absence of answers I would go back to the ALR/solicitor for the recent court proceedings and talk with them about your concerns. It sounds as though court proceedings might be ongoing or open to review.
During court proceedings DoLS/Standard Authorisations can and are regularly ordered to be extended out by the Court of Protection, (to a maximum of 12 months from coming into place), the BIA would have had to review outside of this or any order made by the court. Are you normally consulted by the BIA? Your Local Authority has a DoLS Team. You can call the council and ask to speak with the DoLS Team if you believe restrictions are in place and no one is appointed to monitor.
If your partner consents, you are entitled to access their care information. If they previously were assessed as lacking capacity to consent has there been a recent assessment in capacity?
You can approach care home management for a rationale.
You can speak with Safeguarding via the local council for more specific guidance about any concerns.
Hi. Is it possible that restrictions continue to exist in the care provision but these no longer meet the threshold to be considered to result in a deprivation of liberty following the recent change in the law following the Supreme Court’s AGNI judgement?
Yes, I agree that it is possible for restrictions to remain in place without necessarily amounting to a deprivation of liberty under the post-AGNI test.
The difficulty in my case is that I have two apparently contradictory positions. The care home has told me categorically that he is currently under a DoLS, whereas the DoLS team has issued me with a Form 9 confirming that the standard authorisation has ceased. The Form 9 also doesn’t set out the restrictions or their type, duration, effects or manner of implementation, so I cannot establish how the new multifactorial assessment was applied.
The timing of the AGNI judgement is actually part of the complication: the final CoP hearing was on 24 May, AGNI was handed down on 2 June, and the CoP order was sealed on 26 June. The Court proceedings have subsequently been discharged. As a litigant in person I didn’t have legal representation.
I’m trying to establish what the current legal position actually is, what restrictions are currently being imposed, and what authority the care home is relying upon when it says he is currently under DoLS.
I have also made a statutory request to the DoLS team under paragraph 68 of Schedule A1 MCA which identifies the "Right of a third party to require consideration of whether a DoLS authorisation is needed.” I have followed all the procedural requirements, and made a formal complaint due to not receiving any response.
The complexity of the chronology is what I didn’t adequately explain in my original post because of trying to be concise. I hope this clarifies somewhat.
I guess there can only be a standard authorisation if the local authority has granted one and it hasn’t expired…
The care home could grant itself an urgent authorisation in the process of requesting a standard authorisation from the local authority. This would however only last 7 days without being extended by a further maximum 7 days (by the local authority). If the local authority has already assessed, then the issue of an urgent authorisation is a moot point.
I wanted to highlight one area of concern in what the care home are saying to you, and offer some suggestions to challenge the statement made by them - you say, "The care home […] won’t tell me what restrictions he is subject to, stating confidentiality concerns. How can I challenge the BIA decision to end the DoLS without access to a care plan, or knowledge of restrictions in place?" … Now I am assuming you and probably the care home believe that your partner would lack the capacity to consent to these restrictions, and probably many areas of his care/treatment (I am assuming this based on the fact that DoLS had been in place)? Now if this is the case, i can see no confidentiality reason for not discussing these restrictions with you and the Regulations for service providers and managers - Care Quality Commission and Mental Capacity Act 2005 are your key to challenging this assertion. So:
Basically Regulation 11 is saying, i am paraphrasing, if a person lacks the capacity to consent to elements of their care/treatment (in this case the restrictions), then the MCA (in particular s5 & s6 - explained below) MUST be applied correctly by the provider (this is basically what CQC Regulation 11, subsection 3 and 5 are stating).
This would mean that if your loved one did lack the capacity to consent to an element of their care (this is covered in s2, 3 and 5 of the MCA) the provider MUST when making any best interest decision (covered in s4 and 5 of the MCA) "must take into account, if it is practicable and appropriate to consult them, the views of—
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b)anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court, - this is outlined in Section 4 (7) of the Mental Capacity Act 2005.
As part of making any decision that may be restrictive to an individual the care home would have to consider why these restrictions were both necessary and proportionate (this is in s6 of the Mental Capacity Act, and CQC Regulation 11 subsection 5) and why they believe it to be in the persons best interests (that’s the s4 of the MCA above). Again the point being, this would surely require consultation with 'anyone engaged in caring for the person or interested in his welfare’
Alongside this, the care home would need to be ensuring that the care being provided is ‘person-centred’ which as the CQC guidance explains (Regulation 9: Person-centred care - Care Quality Commission), “Providers must make sure that they take into account people’s capacity and ability to consent, and that either they, or a person lawfully acting on their behalf, must be involved in the planning, management and review of their care and treatment. Providers must make sure that decisions are made by those with the legal authority or responsibility to do so, but they must work within the requirements of the Mental Capacity Act 2005, which includes the duty to consult others such as carers, families and/or advocates where appropriate.”
In conclusion - if either a) the care home cannot explain the confidentiality grounds for not sharing information about the restrictions, and TBH i don’t what they could be outside of cases relating to abuse or the person coming to harm by sharing information with a third party, or b) explain why they have NOT consulted you as part of the best interests decision-making process i would say unless circumstances change i will report my concerns to CQC, my local MP, the local MP and councillor when the home is situated and the local newspaper where the home is situated… That might make them reconsider their position… Also report to the responsible local authority as a safeguarding concern!
I have written a lot of care plans (many moons ago), for individuals unable to make some decisions for themselves, i have never not consulted with the persons family/ friends or circle of support when developing a care plan in a persons best interests.