What are Deprivation of Liberty Safeguards (DoLS)
- What is a deprivation of liberty?
- Who completes the assessment?
- What are the Deprivation of Liberty Safeguards (DoLS)?
- Should a deprivation of liberty be reviewed?
What is a deprivation of liberty?
A Deprivation of Liberty Safeguard (DoLS) is part of the framework introduced by the Mental Capacity Act 2005 (MCA). A person who is being deprived of their liberty as a result of their care needs is entitled to legal safeguards. This is to make sure that the restrictions in place to keep them safe are appropriate and proportionate. The Mental Capacity Act safeguards apply to people who are:
- Over 18
- Have “an impairment of or a disturbance in the functioning of, the mind or brain”
- Whose freedom is being restricted; and
- Who do not have the mental capacity to make decisions about their care or treatment
The Deprivation of Liberty Safeguards (DoLS) procedure is designed to protect your rights if you are deprived of your liberty in a hospital or care home in England or Wales and you lack mental capacity to consent to being there. If it is assessed that you do not have mental capacity to consent to care or treatment, it may be necessary, in your best interests, for other people to decide to place you somewhere to receive it. The Mental Capacity Act 2005 allows other people to make best interest decisions on your behalf. Mental capacity means being able to understand and retain information and make a decision based on that information. A lack of mental capacity must be established before a decision can be made on your behalf. The care home or hospital where you stay must apply for, and be granted, a DoLS authorisation from a ‘supervisory body’. In England, this is always the local authority. Following the recent Supreme Court’s judgement in P v Cheshire West and Chester County Council and P and Q v Surrey County Council, the test for determining whether someone is being deprived of their liberty is that the person is:
- Not free to leave; and
- Under continuous supervision and control
- It does not matter whether the person objects to their living arrangements or not
- It does not matter if their living arrangements are considered “normal” for people with similar cognitive impairments or disabilities
- The reason for or purpose of the placement is irrelevant
If there is a requirement for detention under s.2 or s.3 Mental Health Act 1983 (a person with a mental disorder who requires admission to hospital for assessment or treatment) then a standard authorisation is not appropriate. In other words, a Deprivation of Liberty Safeguard authorisation is not a short cut to avoid “sectioning”.
Responsibility for applying the safeguards The hospital is responsible for ensuring your proposed deprivation of liberty is lawful. It must make a DoLS application if there is any possibility of this happening. The hospital is known as the ‘managing authority’. If you are identified as being deprived of your liberty, or at risk of being deprived of your liberty, the hospital must consider whether
- it is in your best interests and necessary to protect you from harm
- there are alternative, less restrictive care regimes that do not amount to deprivation of liberty.
If it is believed to be in your best interests and a less restrictive arrangement is not possible, the hospital must apply to the ‘supervisory body’ for authorisation of your deprivation of liberty. An assessment is carried out to decide whether you need to be deprived of your liberty to keep you safe and to have care or treatment. In England, the supervisory body is the local authority if you go into a care home or hospital. Authorisation of a deprivation of liberty should be seen as a last resort and less restrictive alternatives that do not amount to deprivation of liberty should be put in place wherever possible. Authorisation should never be used simply for the convenience of staff or carers.
Who completes the assessment?
A Mental Health assessor checks whether the person is suffering from a mental disorder. This is normally a doctor, often a psychiatrist. The Best Interests Assessor (a social worker, nurse, psychologist or occupational therapist) discusses what would be in the person’s Best Interest with the Mental Health assessor, particularly how the deprivation might affect their mental health. They may also consult other professionals involved in the person’s care, any current carers, family members or close friends of the person. These assessors are appointed by the supervisory body which is usually the local authority, but may be the NHS. If all of the conditions are met (as above), then the assessors will report back to the supervisory body who will then grant an authorisation. The assessors should always look at whether there is a less restrictive way of providing the care or treatment.
What are the Deprivation of Liberty Safeguards (DoLS)?
The key elements are:
- That the person is provided with a representative if necessary (a relative, friend or carer, or an Independent Mental Capacity Advocate – IMCA)
- That the representative is given the right to challenge the deprivation through the Court of Protection
- That the representative is able to protect the person’s rights by maintaining regular contact
- That the deprivation is reviewed and monitored regularly
Should a deprivation of liberty be reviewed?
Any deprivation of liberty should be reviewed regularly by the managing authority (care home/hospital) and the supervisory body (local authority or NHS) to check whether the authorisation is still needed and to check that the qualifying requirements are still present. A review should take place immediately if there is any change of circumstance, such as a person regaining mental capacity or agreement upon a less restrictive way of caring for them. If the authorisation is no longer necessary, it should be removed. A Deprivation of Liberty should last for the shortest possible time and up to a maximum of 12 months. During this time, the person’s representative should be kept updated with information about the person’s treatment and care.
DOLS provide legal protection for those vulnerable people who are, or may become, deprived of their liberty within the meaning of Article 5 of the European Convention on the Human Rights (ECHR) in a hospital or care home, whether placed under public or private arrangements. The safeguards exist to provide a legal framework and protection in circumstances where deprivation of liberty appears to be unavoidable in a person’s best interests.