Deprivation of Liberty Procedure

RELATED GUIDANCE

Deprivation of Liberty

Mental Capacity

This chapter was added to the manual in June 2019.

1. Legislation

Legislation provides:

  • Checks and balances where a person has their liberty deprived or restricted by a Social Care professional or Health professional.

There are 3 tests to consider:

Objective - compared to another person of the same age and relative maturity how much greater is the intensity of support, supervision and restriction.

Subjective - is consent given or is the deprivation of liberty authorised.

Imputable to the state - Social Care or Health are directly involved in the provision of the care which results in the restriction or deprivation of liberty.

Authorisation - dependent on age and legal status.

For children in the care of the LA there will be occasions when restrictions (those restrictions being different to those of a child/YP of a similar age) are in place as part of their Care Plan in order to promote either/or their physical wellbeing and safety and /or their emotional wellbeing and safety.

This restriction may amount to a Deprivation of Liberty and has to be properly authorised otherwise it is illegal (this does not apply to children subject to Secure Accommodation Order as the Court has already authorised).

For children in care under s20 of the Children Act those with pr can generally authorise that restriction unless their parenting capacity is questioned- i.e. they do not have capacity because of their own needs/ s20 has been agreed whilst proceedings are initiated. If the Child has capacity (Fraser Guidelines/ Gillick competent), this will need consideration and legal advice sought especially if the child does not agree with the Care Plan.

For children in Care who are subject to a Care Order or an Interim Care Order authorisation has to be by the consent of the child /YP who has to have the capacity to consent or by a Court Order.

Consider:

  • What are the child's care needs on a day to day basis;
  • What is the level of care they receive –consider staffing ratios / private time etc.
  • What are the restrictions on their freedom of movement? Are they only allowed out with supervising adults? Are they not allowed to leave? Are they not allowed contact with specified others?
  • Are they under continuous supervision?
  • Are there restrictions on their use of the computer / internet / telephone / social media?
  • Does their care involve physical assistance?
  • Does their care involve physical confinement?

2. Process and Procedure

  1. SW and TM identify likely Deprivation of liberty having considered the three tests;
  2. TM consults with SM;
  3. SM approves convening of LGPM;
  4. Business Support book a LGPM;
  5. LGPM – 48 hours in advance of the meeting the following documentation is sent to legal services via ChildcareLGPM@rotherham.gov.uk and SM who is chairing the LGPM:
    • LGPM Agenda and Record DOLS – see below*;
    • LAC Care Plan;
    • Placement Plan – containing the detail of day to day care and any restrictions;
    • Information from other agencies as applicable.

    And as applicable either:

    • Capacity assessment (the test for determining whether a person lacks capacity is that the person is unable to make a decision due to being unable to either understand, retain, use or weigh up the relevant information pertaining to the decision or is unable to communicate the decision and the inability to understand, retain, use, weigh up or communicate the decision is because of an impairment of, or a disturbance of, the functioning of the person's mind or brain). The Mental Capacity Assessment as used by adults can be used. link to MCA assessment tool;

      Or
    • Gillick competence assessment for under 16 year olds (The test for determining whether a child is competent to make a specific decision is whether the child can (i) understand the nature and implications of the decision and process of implementing that decision; (ii) understanding the implications of not pursuing the decision; (iii) retain the information long enough for the decision-making process to take place; (iv) be of sufficient intelligence and maturity to weigh up the information and arrive at a decision; (v) be able to communicate the decision).

      And
    • *LGPM Record and agenda form (see LGPM record agenda and record) which will include a summary to cover:
      • The family background and any historical concerns, including any previous care proceedings;
      • Why and how the child is LAC;
      • What the child's legal status is;
      • If s20 what is the level of involvement by the parents/ those with p.r.;
      • What capacity does the child have to consent? Consider their age and development;
      • Has the child consented to the Care plan?
      • Have the parent(s)/those with pr consented?
      • What are the child's care needs on a day to day basis;
      • What is the level of care they receive –consider staffing ratios / private time etc.
      • What are the restrictions on their freedom of movement;
      • Are there restrictions on their use of the computer / internet / telephone / social media?
      • Does their care involve physical assistance?
      • Does their care involve physical restraint?
      • Compared to a child of a similar age is this child's lived experience different?
      • Information from other agencies, e.g. CAMHS, Health;
      • Is this Care plan the only option –have other options been considered?
  6. LGPM held.
    • Outcome - DOL is found and authorisation needs to be sought from the Court.
  7. Documents for court:
    • SW to prepare report using the DOL statement template (DOL SWET) with the guidance of the LA solicitor within 8 days. TM and SM to QA within 2 days;
    • SW to prepare instruction memo to legal services immediately after LGPM;
    • SW to prepare DOL Legal Care Plan;
    • SW to create bundle of documents as used at LGPM (see above);
    • SW to submit all the above to legal services;
    • Legal services make application to court.
  8. Court – Social Worker & TM.
    • This could be a local Family Court when a local judge is able to sit as a High Judge and the inherent jurisdiction is applied;
    • Court will appoint a Guardian for the child;
    • Order if made – DOL authorised.

      N.B. Court will specify that it needs to be reviewed and usually this is in a year.
      The order is applicable to the child in their current situation so if the placement changes the process starts again.
      If the care plan becomes more restrictive, an application will need to be made to the court for authorisation for the more restrictive care plan before it is implemented (or if the restrictions need to be implemented urgently, an application should be made to court at the earliest opportunity for approval of the amended care plan). The deprivation of liberty authorisation is a permissive order. Therefore the local authority is not required to deprive the young person of their liberty- it is only permitted to. It therefore follows that an application would not need to be made to the court if the care plan became less restrictive.
  9. Add DOL to child's Legal status on LCS (through the Additional tab);
  10. Regularly review the need for DOL;
  11. Will need to be reviewed within a year by the court so it needs to be reviewed at a LAC review at the 9 month point or at the mid way IRO review, whichever is closest to the 9 month point to ensure there is enough time to make a new application. (LCS will send an alert to the allocated SW 3 months before the Order Expiry date);
  12. Renewal needed:
    • Reconvene LGPM and commence process again.

See also: Deprivation of Libery Flowchart.

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