December 2025
Download a pdf version of this newsletter
Welcome to the last newsletter of 2025. These newsletters are aimed at those who sign DoLS authorisations.
The intention of this newsletter is to keep DoLS signatories /authorisers up to date with practice changes and case law.
On 20-22nd October there was an important hearing in the Supreme Court.
Usually, we experience a case getting to the Supreme Court when it has been through the lower courts and there are people at the heart of the case. This case was different. It was a reference by the Attorney General for Northern Ireland essentially asking a policy question. Could they describe valid consent in the Code of Practice to mean consent inferred from a person’s wishes and feelings, even though that person lacks capacity for care and treatment decisions. If so, this would not engage Article 5 and there would be no DoLS type process required.
As this would clearly have UK wide implications other people joined to represent Scotland, Wales and DHSC along with Mencap, Mind and the Autistic Society.
It was a long and complex discussion over three days. The charities were concerned that people may be seen to be compliant and could in fact be pressured into compliance, when that is not in line with their wishes. The judges themselves appeared to know very little about DoLS or the situation on the ground. DHSC asked the Court to re-examine Cheshire West, arguing it had been wrongly decided, but we don’t yet know if that will be accepted.
The timing is key as the LPS announcement was made the weekend before this hearing. The SC are not likely to give a judgement on this for around 6 months and clearly it would affect the meaning of deprivation of liberty.
Further materials on the Supreme Court hearing
Myself and Claire Barcham from ADASS discuss the hearing and implications.
A huge number of blogs following the hearing can be found here.
The recording of the hearing is still available here
Liberty Protection Safeguards announcement
https://www.gov.uk/government/news/improved-safeguarding-and-protections-for-vulnerable-people
A consultation on the Liberty Protection Safeguards (LPS) will be launched in the first half of next year. The consultation will be jointly run by Department of Health and Social Care and Ministry of Justice (MoJ).
DHSC say they are “launching this consultation because of the longstanding and compelling case for reform of the outdated Deprivation of Liberty Safeguards system”. LPS was introduced to statute in 2019 but was not implemented by the previous government.
As part of this consultation, the department/s will publish a revised Code of Practice incorporating changes in case law, legislation, organisational structures, terminology, and good practice since 2007, addressing critical challenges in the existing Deprivations of Liberty Safeguards framework.
The responses from the consultation will be used to inform an updated Mental Capacity Act (2005) Code of Practice and new regulations which will be laid in Parliament.
My take on this (and it is purely my reading of this statement) is that they will in essence use the previous consultation which we all responded to, to update the Codes of practice and then we will be consulted on these newer versions. I live in hope that this means some of the issues we highlighted with LPS will be ironed out in a new Code and the way forward will be smoother and simpler.
Communicating in the functional test for mental capacity BV (Medical Treatment – Renal Cancer: Nephrectomy) [2025] EWCOP 41 (T3)
This relatively routine case is highlighted for bringing clarity to the question of what to record in the communication part of a mental capacity assessment.
Alex Ruck Keene writes “Two points stand out …..the second is the way in which Dr C approached the communication limb. So often, we see that part of the report completed as “P is able to communicate a decision,” at a point when the assessor has found that they cannot understand, retain, use or weigh relevant information. At that point, and (as discussed here) there is no ‘decision’ for the person to communicate, so saying that “P can communicate a decision” is logically meaningless. Dr C framed it correctly – this was a case where BV was able to communicate his wishes and feelings, wishes and feelings which, in turn, could be considered in the best interests decision-making process”. It is also worth clicking the link to read more in 39 Essex Chambers Guidance.
Essential reading for anyone involved in DoLS work
Health, Welfare and Deprivation of Liberty | 39 Essex Chambers
Mental Capacity Law and Policy
September 2025
Download a pdf version of this newsletter
Welcome to the second newsletter aimed at those who sign off DoLS authorisations.
The intention of this newsletter is to keep DoLS signatories /authorisers up to date with practice changes and case law.
An important case on the meaning of Deprivation of Liberty will be heard by the Supreme Court on 20th October which could have far reaching consequences for the meaning of deprivation of liberty.
The Attorney-General for Northern Ireland has asked the Supreme Court whether proposed changes to Northern Ireland's Deprivation of Liberty Safeguards Code of Practice that differ from the approach set out in the landmark Cheshire West ruling nevertheless satisfy the European Convention on Human Rights, right to liberty.
The specific issue referred to the Supreme Court is: “Whether the Minister of Health has power to revise the Deprivation of Liberty Safeguards Code of Practice issued under s.288 of the Mental Capacity Act (Northern Ireland) 2016 (‘the 2016 Act’) so as to provide that, in the context of the delivery of care and treatment, individuals aged 16 and over with impaired decision-making may be understood to be consenting to confinement through the expression of wishes and feelings, so that their circumstances do not fall within the scope of Article 5 of the European Convention on Human Rights (‘ECHR)’)”
This would mean that the NI Deprivation of Liberty Safeguards Code of Practice would adopt a different approach to the scope of Article 5 from that outlined by the Supreme Court in the case of P v Cheshire West and Chester Council & Anor [2014] UKSC 191 but which would nonetheless satisfy the requirements of Article 5.
UPDATE: DHSC have now also intervened in the case
SCIE response to CQC DoLS data
An important piece by SCIE highlighting delays in modernising the DoLS Scheme.
SCIE’s analysis of Care Quality Commission (CQC) inspections (of Councils) up to August 2025 shows:
- 67% of local authorities inspected were failing to meet DoLS requirements
- The most frequent failing was not processing requests on time or lawfully
- Local authorities cited staff shortages and rising demand as the main drivers of the backlog
Despite a 21-day legal target for completing assessments, only 19% are processed in time. Thousands of people wait 12 to 18 months, effectively living in legal limbo.
Two-thirds of councils need to improve on DoLS, finds analysis of CQC reports - Community Care
Clarification on the date an authorisation starts
A question was recently raised by an Authoriser about the date an authorisation starts. For clarity and to ensure we are all working in the same way, an authorisation starts when it is signed off by the authoriser i.e. on that date or a date in the future decided by them. It doesn’t start when the assessments are dated. This is why it is so important to have the sign off as near to the assessment date as possible. This avoids losing the full 12 months of authorisation but also makes it more likely that the assessments will still be in time when the renewal is required. Authorisers could consider always giving 11 months rather than 12 to ensure the best chance of reusing assessments.
WMADASS Community dol Priority tool
A priority tool for community dol applications is now complete and will also be endorsed by ADASS. Please help to circulate this by sharing with colleagues in Children’s Services and also Health Colleagues who may also make applications for community dol Orders.
New version of Form 5 checklist
A new version of the Form 5 checklist is now complete and will be uploaded to WMADASS webpage. This tool is to assist authorisers and could also be used for short audits.
Fiona Laskaris fights for amendments to the MCA after her son was murdered.
Christopher Laskaris was murdered in his home aged 24 in November 2016. He was a very vulnerable young man with Autism and a long, documented history of exploitation and abuse in the community. His mother details how he did not receive the support he needed and lived a reclusive life. His murderer was a drug dealer, who had recently been released from prison on license. He gained access to Christopher’s flat when Christopher was left without a secure front door for 5 days after police broke his door down due to welfare concern. His mental capacity was not assessed for key decisions and Mrs Laskaris feels the MCA should be amended to allow parents/family to request a mental capacity assessment to prevent professionals simple relying on the presumption of capacity.
Snapshot of waiting lists for DoLS across the region.
Waiting lists for assessment do seem to be down across the region. The annual national trend was about a 2-3% reduction over the previous year. Initial figures suggest the West Midlands figures are in the region of 11% Further work is being done to confirm accurate figures as some Councils only count unallocated cases as opposed to all cases not yet authorised.
Essential reading for anyone involved in DoLS work
Health, Welfare and Deprivation of Liberty | 39 Essex Chambers
Mental Capacity Law and Policy
January 2025
Download a pdf version of this newsletter
WM ADASS forms
WM ADASS reviewed DoLS Forms last year and updated practice guidance. The main changes were:
- A report style Form 3. The aim of this change was to reduce duplication and get assessors to focus on being succinct and analytical rather than historic and narrative
- A Form 5 without the need for written scrutiny. This returned the forms to the original state as those produced by the Department of Health in 2009. This maintains the same standards and expectations from the persons signing the authorisation but removes the need to create a record of it.
- A form 6 which only needs to be used when assessments have been carried out and does not need to be scrutinised or signed by anyone in a senior position such as a signatory/authoriser
Practice update Form 3 Report style
Please note that the Schedule for DoLS only requires the following of a BIA
1. They must consult the managing authority
2.They must have regard to
a.The needs assessment
b.The care plan
c.The conclusions of the Mental Health Assessor
3.They must record the name and address of every interested person they have consulted (NB: no requirement to consult any or all interested persons)
The new form allows the assessor to write a report proportionate to the situation. We do not recommend that they adopt headings as this returns the form to the old state rather than the new. The headings at the top of the best interests section are to some extent an aide memoire for the assessor and can even be deleted once the report is written.
Individual Councils may of course choose to set their own requirements.
The aim in the WM is to produce clear, succinct reports which families are also able to understand. We have considered the following advice by Sir James Munby:
“All too often […], local authorities are filing enormously voluminous materials which – and this is not their fault – are not merely far too long; too often they are narrative and historical rather than analytical.
I want to send out a clear message: local authority materials can be much shorter than hitherto and they should be more focused on analysis than on history and narrative.
In short, the local authority materials must be succinct and analytical. But they must also of course be evidence-based.”
Sir James Munby, View from the President's Chambers: Expert Evidence (Family Law, 2013)
WM ADASS Priority tool and beyond
The priority tool for identifying which applications should be processed first was also updated last year and adopted by the wider ADASS group. This change mainly puts acute hospitals on the same footing as care homes in having to demonstrate additional factors in order for the assessment to be prioritised.
New version of Form 5 checklist
A new version of the Form 5 checklist is currently being consulted on by DoLS Leads and is to be circulated with this newsletter. Please feed views back to me by email
lorraine.currie@wm-adass.org.uk
Interesting case – ‘Stop saying on a dols!!’
“On a DoLS” – mythbusting by a (rightly) exasperated Court of Protection – Mental Capacity Law and Policy
A great case to read and share with colleagues in Children’s services. It explains clearly that the origin of any restrictions is the care plan not the DoLS or DOL Order. A DoLS or DOL Order is permissive not mandatory.
Para 52 52. Unfortunately, when the Court authorises such a care plan that amounts to a “dol” it is seen as being mandatory, like the Court has imposed a prison sentence. That gives rise to an unfortunate misconception on the part of the people who are the subject of these orders that the order, while it remains in place, requires those providing care to keep them actually locked in and locked up.
Essential reading for anyone involved in DoLS work
Health, Welfare and Deprivation of Liberty | 39 Essex Chambers
Mental Capacity Law and Policy