The Covid-19 pandemic has brought with it an awareness and appreciation of one’s liberty. For many adults, this has been the first time they have not been able to do as they would like and make independent decisions. However, there is a significant part of the population that goes through this experience every day, regardless of the pandemic: this is people for whom there is a deprivation of liberty safeguard (DOLS) in place. A DOLS ensures people who cannot consent to their care arrangements in a community or institutional setting are protected if those arrangements deprive them of their liberty. This protection is best achieved by the arrangements being assessed regularly to check if they are necessary and in the person's best interests.
Although during the pandemic the lack of wider liberty was for the general public’s best interests, the main difference between those with DOLS in place and those without is that the former are not only under continuous supervision and control and are not free to leave their place of residence, but also that they lack capacity to consent to these arrangements.
The Court of Protection team at Penningtons Manches Cooper specialises in managing the finances of people who lack capacity to do so themselves; it is not unusual that one of the team’s clients may also lack capacity to consent to their care and living arrangements and satisfy the criteria for a DOLS to be put in place.
Deputies have a duty to notify the relevant supervisory body responsible for a client if they become aware that a client’s care regime is potentially depriving them of their liberty. This is made clear by the recent case of ACC & others  EWCOP 9. More details on this case can be found here.
If a client’s care regime is depriving them of their liberty and there is no DOLS authorisation in place, then that leads to an unlawful situation which would require the deputy’s attention.
If the care package is funded privately, then the supervisory body that the deputy would need to notify of the liberty deprivation is the client’s local authority. If the care package is publicly funded through a personal health budget or any other continuing healthcare provisions, then the relevant clinical commissioning group (CCG) or NHS trust responsible for the funding would need to be notified.
Should the relevant supervisory body not act upon being notified, the deputy would need to bring this matter to the Court of Protection’s attention and ask the court to make relevant directions for a DOLS authorisation. This is because, as per ACC, a financial deputy does not have any authority in respect of welfare matters and should alert the body with responsibility to take the appropriate action. If the relevant body fails to do so or merely ‘drags its heels’, then the deputy may - without specific authority to do so - appropriately make an application to draw this to the attention of the court and seek further directions.
The pandemic, however, has not only affected vulnerable people’s care arrangements, which may now result in DOLS being necessary, but has also affected the way deputies may deal with public bodies. Specifically, as a consequence of the Coronavirus Act 2020, all public body duties were downgraded to powers. This meant that although public bodies would not be prevented from doing anything they did before the pandemic, they would not be required to do so. It was recently announced that the provisions in the Coronavirus Act 2020 that allowed councils to suspend parts of the Care Act 2014 would be dropped.
Thankfully, the Coronavirus Act did not affect the DOLS regime. This is because DOLS are linked to human rights and, as per the Coronavirus Act, public bodies still have a duty to uphold convention rights despite the Act coming into existence. Therefore, interfering with the DOLS regime could be seen as a breach of human rights (specifically, DOLS relate to Article 5 of the Human Rights Act, which is the right to liberty).
Earlier in the pandemic, the Department for Health and Social Care issued emergency guidance in relation to DOLS, which confirmed that the Mental Capacity Act 2005 will apply during the pandemic and supervisory bodies should continue to consider DOLS authorisation referrals.
The DOLS regime itself was due to be replaced in October 2020 by a new, more streamlined system called liberty protection safeguards (LPS), but the Covid-19 pandemic has delayed its implementation until at least April 2022.
As a result of the pandemic, there has been an increase in deprivation of liberty situations. It is therefore important for financial deputies to note that as the DOLS regime has not been affected by either the Covid-19 situation or recent legislation, they still have a professional duty to bring potential issues to supervisory bodies’ attention and, should these bodies not take the appropriate steps necessary, the deputy should seek directions from the Court of Protection.