Description
The Deprivation of Liberty Safeguards (DoLS) are an amendment to the Mental Capacity Act 2005 (the ‘Act’), and provides protection for vulnerable people, in care homes or hospitals who lack capacity to consent to the care or treatment they need. In 2014, following a Supreme Court ruling, the law in relation to DoLS changed, meaning the Act applied to far more people than it had previously, with the number of people subject to DoLS increasing significantly.
In 2019 the law was changed with an amended Mental Capacity Act (2019) (MCA). The MCA (amendment) 2019 was to put in place new legislation, the publication of a new code, and regulations under Liberty Protection Safeguards (LPS). These changes were originally scheduled to replace the DoLS legislation and procedures from 1 October 2020. However, in April 2023 the Department of Health and Social Care announced the implementation of the Liberty Protection Safeguards (LPS), the Mental Capacity (Amendment) Act 2019, would be delayed “beyond the life of this Parliament” (therefore beyond Autumn 2024). As such, the existing DoLS policies, rules and regulations are still extant.
The DoLS Team provide the service in line with statutory requirements from Mental Capacity Act 2005 (as amended, 2009) and therefore, it must be provided by a statutory body.
As a ‘Managing Authority’, Cardiff and Vale UHB have responsibility for applying to the relevant Supervisory Body for authorisation of a deprivation of liberty for any person who may come within the scope of the Safeguards. Cardiff and Vale UHB have a long-standing tripartite agreement, with both Cardiff and the Vale Local Authorities, which provides that the Vale LA will act as the ‘Supervisory Body’ for our geographical area in the form of the DoLS Team. Under this agreement the UHB contributes funds on a proportional basis (45%) for the provision of this service. As the Supervisory Body, the DoLS team receive requests for authorisations and arrange for the relevant assessments to be completed to establish whether it would be appropriate and lawful to deprive the person of their liberty in hospital, in order to provide care and treatment. Without this authorisation, the UHB is in breach of Article 5 of the European Convention on Human Rights, which requires that ‘no one shall be deprived of his or her liberty [unless] in accordance with a procedure prescribed in law]’.
This contract in an exemption under Schedule 2.2.3 of the 2023 Procurement Act which states a contract is exempt from a formal procurement process if it is a horizontal arrangement. A “horizontal arrangement” means an arrangement—
(a) entered into—
(i) with the aim of achieving objectives the authorities have in common in connection with the exercise of their public functions;
(ii) solely in the public interest;