Deprivation of Liberty Safeguards (DoLS)
- Deprivation of Liberty Safeguards
- DoLS in a care home or hospital setting
- DoL in a community setting (Deprivation of Liberty Order)
- Mental Capacity Act (amendment) Bill - Liberty Protection Safeguards
Deprivation of Liberty Safeguards
As UK citizens, our right to liberty or freedom is protected under The European Convention on Human Rights (bought into UK law by the Human Rights Act 1998). Article 5 of this convention protects our ‘right to liberty and security’ meaning that we can only have our freedom taken away in certain circumstances. For more details see the government legislation here.
For example, a person may need to receive care or treatment which is necessary for their wellbeing and safety, but they may lack the mental capacity to be able to give their consent. If the way they are cared for needs to be provided in their best interests, but results in them being deprived of their liberty, a legal authorisation called DoLS (Deprivation of Liberty Safeguards) must be applied for.
There are some situations where a person is legally entitled to the support of an advocate. This is called 'statutory advocacy'. Independent Mental Capacity Advocates (IMCAs) are specially trained to support certain people under the Mental Capacity Act, and can also become involved with DoLS cases. DoLS advocates protect the rights of those admitted to hospital, or live in residential care, lack capacity, and it appears they are being deprived of their liberty. You can find out more about IMCAs and other advocacy support available in this article.
The purpose of DoLS
DoLS came into law in 2009 under an amendment to the Mental Capacity Act 2005. The safeguards provide a legal framework to protect anyone 18 years old or over with a mental disorder and lacking the mental capacity to make decisions about their accommodation arrangements.
DoLS ensure that professionals consider all the circumstances of necessary care and treatment which may deprive a person of their freedom and liberty. They ensure it is provided in the least restrictive way and that it is not being done without proper consideration.
When a DoLS can be considered
A DoLS authorisation can only be made in a CQC (Care Quality Commission) registered care home or hospital. A Deprivation of Liberty in a community setting such as supported living, or where the person lives day to day needs to be authorised directly by The Court of Protection.
A DoLS authorisation is only considered if:
- the person lacks the mental capacity to make the decision about where they should be accommodated in order to receive care or treatment and
- the person is subject to continuous supervision and control by those who care for them (for example, someone knows where the person is at all times and what they are doing) and
- the person lacks the freedom to enter and leave the premises at their own accord or leave permanently if they choose to do so.
DoLS in a care home or hospital setting
If the person you care about is spending time in a short break, or has moved into a residential or nursing home, and the above three factors apply, the care home manager should request a DoLS authorisation from the council. The manager should inform you about the application at the time they are making it and explain the reasons. The same process applies if the person you care about is admitted to hospital.
How a DoLS is authorized in a care home or hospital setting
Under DoLS, a hospital or registered care home becomes a “managing authority”, with the council becoming a ‘supervisory body’. Each has their own set of duties and responsibilities, although some of these are shared. Managing authorities will have a duty to identify existing or potential DoLs and make a referral to the relevant supervisory body. On receiving an appropriate DoLS referral, the supervisory body will have to arrange an assessment as part of the process of deciding whether or not to grant an authorisation.
CQC registered care homes and hospitals can make an application for a Deprivation of Liberty Safeguards authorisation to South Gloucestershire Council by completing form 1, or form 2 to request a re-assessment of a current DoLS authorisation that is about to expire. The necessary forms are available on the ADASS website. Once completed forms should be emailed to email@example.com using a secure email facility. If you do not have a secure email connection please contact the DoLS team on telephone 01454 86 5824 so they can help arrange this for you.
How an assessment is made to grant a DoLS
A DoLS assessment is made up of six parts and is completed by two professionals.
A Best Interest Assessor (BIA) and Mental Health Assessor will both visit and assess the person. The BIA will make a decision about whether to recommend for a DoLS authorisation.
The Supervisory body will consider all assessments and decide whether to make a DoLS authorisation for up to one year.
As a relative of someone who is involved in the person’s welfare, you may be consulted as part of the assessment process. For more information visit the ADASS website. ADASS is the Association of Directors of Adult Social Services in England.
If the care or treatment is likely to continue beyond the duration of the authorisation, an application for a further authorisation must be made before the existing one expires.
If an authorisation is refused, the hospital or care home will need to provide the care or treatment in a less restrictive way that does not result in a deprivation of liberty.
DoL in a community setting (Deprivation of Liberty Order)
If the person you care about is a resident in a supported living setting or lives in their own usual place of residence, and they are deprived of their liberty, a Deprivation of Liberty Order (DoL) may be necessary. The process of authorising differs slightly to DoLS in a care home or hospital as described above.
How a DoL is authorised
If the person deprived of their liberty lacks the capacity to consent to their care or treatment, and the state is involved in their care in some way, then the council will arrange for a best interests assessment to be completed. This is to establish whether there is a less restrictive way to care for them. Family and those involved in the person’s care and support will be consulted as part of this process. The person’s social worker usually carries out the assessment.
Once the assessment is complete, if the restrictions are considered proportionate the council will apply directly to The Court of Protection for legal authorisation so that they may continue to deprive the person of their liberty. The ADASS website has more details of this process.
Mental Capacity Act (amendment) Bill - Liberty Protection Safeguards
The legislation regarding deprivation of liberty has been amended. The Mental Capacity Act (Amendment) Bill was agreed in Parliament in April 2019 and was due to be implemented in April 2022. This has been delayed by the DHSC, who are yet to provide a new implementation date. Once implemented the way in which a deprivation of liberty is authorised will significantly change from what has been described above. ‘The Liberty Protection Safeguards’ (‘LPS’) will be the replacement legislation, although further regulations and guidance are awaited. This article will be updated when further information is available. For more information on the changes see:
Mental Capacity (Amendment) Act 2019