The DoLS are a set of checks that are part of the Mental Capacity Act 2005, which applies in England and Wales. The DoLS procedure is designed to protect a person receiving care whose liberty has been limited, by checking that this is appropriate and is in their best interests.
- The DoLS apply in England and Wales only.
- The DoLS were designed to ensure that people who cannot consent to their care arrangements in a care home or hospital are protected if those arrangements deprive them of their liberty. Hence, arrangements should be assessed to check they are necessary and in the person’s best interests.
- Because The Mental Capacity Act allows restraint and restrictions to be used (if they are in a person's best interests), the DoLS are needed if the restrictions and restraint used deprive a person of their liberty.
- DoLS can only be used if a person is deprived of their liberty in a care home or hospital. In other settings the Court of Protection can authorise a deprivation of liberty.
- The DoLS procedure means that the person’s care arrangements and limits to their freedom are not just put in place, but rather they are assessed, applied for a set period of time, and reviewed.
- The local authority deals with DoLS for care homes or hospital residents and decides if a person can be deprived of their liberty. An application is called "requesting a standard authorisation". There are six assessments which have to take place before a standard authorisation can be given.
- If a standard authorisation is granted, one key safeguard is that the person has someone appointed with legal powers to represent them. This is called the relevant person's representative, and will usually be a family member or friend. Other safeguards include rights to challenge authorisations in the Court of Protection, and access to Independent Mental Capacity Advocates (IMCAs).
What amounts to a deprivation of liberty?
Article 5 of the Human Rights Act states that 'everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty [unless] in accordance with a procedure prescribed in law'.
The Deprivation of Liberty Safeguards is therefore the procedure prescribed in law when it is necessary to deprive the liberty of a resident or patient who lacks capacity to consent to their care and treatment in order to keep them safe from harm. Many things count as a deprivation of liberty, and particularly people with dementia living in care homes and hospitals receive care that counts as such. It is sadly often necessary to provide care in this way.
A Supreme Court judgement in March 2014 made reference to the 'acid test' to see whether a person is being deprived of their liberty, which consisted of two questions:
- Is the person subject to continuous supervision and control? and
- Is the person free to leave? – with the focus being not on whether a person seems to be wanting to leave, but on how those who support them would react if they did want to leave. If someone is subject to that level of supervision, and is not free to leave, then it is almost certain that they are being deprived of their liberty.
Even with the 'acid test' it can be difficult to be clear when the use of restrictions and restraint in someone's support cross a line and deprives them of their liberty. Hence, each case must be considered on its own merits. To help, in addition to the two 'acid test' questions, if one or more of the following features are present, it will likely be the case that a person is being deprived of their liberty:
- frequent use of sedation/medication to control behaviour
- regular use of physical restraint to control behaviour
- the person concerned objects verbally or physically to the restriction and/or restraint
- objections from family and/or friends to the restriction or restraint
- the person is confined to a particular part of an establishment in which they are being cared for
- the placement is potentially unstable
- possible challenge to the restriction and restraint being proposed to the Court of Protection or the Ombudsman,
- a letter of complaint or a solicitor’s letter about the restriction
- the person is already subject to a deprivation of liberty authorisation which is about to expire Restraint and restrictions Restraint and restrictions must be proportionate to any harm a care giver is seeking to prevent, and may include:
- the use of some medication, for example, to calm a person
- close supervision in the home, or the use of isolation requiring a person to be supervised when out physically stopping a person from doing something which could cause them harm
- removing items from a person which could cause them harm
- holding a person so that they can be given care, support or treatment
- bedrails, wheelchair straps, restraints in a vehicle, and splints
- repeatedly saying to a person they will be restrained if they persist in a certain behaviour.
As all of the above take away a person's freedom and so deprive them of their liberty, it should always be borne in mind whether the support offered to a person is the least restrictive way of providing that support. Final decisions about what amounts to a deprivation of liberty are made by court. The Code of Practice for the Deprivation of Liberty Safeguards gives examples of where courts have found people being and not being deprived of their liberty.
How is deprivation of liberty authorised under DoLS?
As stated above, DoLS only applies to people who are in a care home or hospital. The care home or hospital is called the managing authority in the DoLS. Where a managing authority thinks it needs to deprive someone of their liberty they have to ask for this to be authorised by a supervisory body. They can do this up to 28 days in advance of when they plan to deprive the person of their liberty.
For care homes and hospitals the supervisory body is the local authority where the person is ordinarily resident. Usually this will be the local authority where the care home is located, unless the person is funded by a different local authority. The managing authority must fill out a form requesting a standard authorisation. This is sent to the supervisory body which has to decide within 21 days whether the person can be deprived of their liberty.
The supervisory body appoints assessors to see if the conditions are met to allow the person to be deprived of their liberty under the safeguards. They include:
- The person is 18 or over (different safeguards apply for children).
- The person is suffering from a mental disorder.
- The person lacks capacity to decide for themselves about the restrictions which are proposed so they can receive the necessary care and treatment.
- The restrictions would deprive the person of their liberty.
- The proposed restrictions would be in the person’s best interests.
- The person should not instead be considered for detention under the Mental Health Act.
- There is no valid advance decision to refuse treatment or support that would be overridden by any DoLS process.
If any of the above conditions are not met, deprivation of liberty cannot be authorised. If all conditions are met, the supervisory body must authorise the deprivation of liberty and inform the person and managing authority in writing. It can be authorised for up to one yea, but the person concerned does not have to be deprived of their liberty for the duration of the authorisation. The restrictions should stop as soon as they are no longer required.
Conditions on the standard authorisation can be set by the supervisory body. These must be followed by the managing authority. Standard authorisations cannot be extended. If it is felt that a person still needs to be deprived of their liberty at the end of an authorisation, the managing authority must request another standard authorisation.
The managing authority can deprive a person of their liberty for up to 7 days using an urgent authorisation. It can only be extended (for up to a further 7 days) if the supervisory body agrees to a request made by the managing authority to do this. When using an urgent authorisation the managing authority must also make a request for a standard authorisation. The managing authority must have a reasonable belief that a standard authorisation would be granted if using an urgent authorisation.
Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person. Their knowledge of the person could mean that deprivation of liberty can be avoided. The managing authority should make a record of their efforts to consult others.
- the assessment process for a standard authorisation involves at least 2 independent assessors who must have received training for their role. There will always be one mental health assessor and one best interests assessor, who will stop deprivation of liberty being authorised if they do not think all the conditions are met.
- family, friends and paid carers who know the person well should be consulted as part of the assessment process. They may have suggestions about how the person can be supported without having to deprive them of their liberty. People who don’t have family or friends who can represent them have a right to the support of an Independent Mental Capacity Advocate (IMCA) during the assessment process.
- the fifth principle of the Mental Capacity Act, that any decision made in a person’s best interests must be the least restrictive of their rights and freedoms, should always be considered
- if the person concerned has an unpaid relevant person's representative, both they and their representative are entitled to the support of an Independent Mental Capacity Advocate.
- a relevant person’s representative must be appointed as soon as possible after a DoLS authorisation has been granted.
- the person concerned and their representative can require any authorisation to be reviewed at any time, to see whether the criteria to deprive the person of their liberty are still met, and if so whether any conditions need to change
- the person and their relevant person's representative have a right to challenge the deprivation of liberty in the Court of Protection at any time.
Important to know
- If a person is in a setting other than a care home or hospital, including in supported living or their own home, it is still possible to deprive the person of their liberty in their best interests, via an application to the Court of Protection.
- If a person is in hospital they should not be subject to the Deprivation of Liberty Safeguards if they meet the criteria for detention under the Mental Health Act.
- The Deprivation of Liberty Safeguards should not be used if the main reason is to restrict contact with individuals who may cause the person harm. If it is believed to be in a person’s best interests to limit contact an application should be made to the Court of Protection.
- If there is a dispute about where a person should stay, an authorisation does not resolve the dispute. The Code of Practice of the Mental Capacity Act says that unresolved disputes about residence, including the person themselves disagreeing, should be referred to the Court of Protection.
If you think a person is being unlawfully deprived of their liberty in a care home or hospital, you should ask if care could be provided in a less restrictive way. If depriving the person of their liberty seems unavoidable, you should insist that an application be made for a standard authorisation.
If you come across someone in another setting who is being deprived of their liberty without Court authorisation, you could consider making a safeguarding alert to the local authority, or to challenge what may be an unlawful deprivation of liberty in the Court of Protection.
If a care/nursing home or hospital makes an application to a local authority for a deprivation of liberty authorisation, it must inform the Care Quality Commission, once the outcome of the application is known. CQC provides a form for this purpose.
Similarly, if a supported living, shared lives or other community provider requests an authorisation of a deprivation of liberty from the Court of Protection, the CQC must be informed once the outcome is known, using the same form.
If a person subject to a deprivation of liberty authorisation should die while subject to the authorisation the local Coroner's Office should be informed by the care provider.
Liberty Protection Safeguards
In July 2018, the Government published a Mental Capacity (Amendment) Bill which means that DoLS are to be replaced by the Liberty Protection Safeguards (LPS). Under LPS, there will be a streamlined process for authorising deprivations of liberty. LPS will go live on 1 April 2022
Call to action
It is very easy for something to constitute a deprivation of liberty. Forced self-isolation in a care home room, or refusal to allow an out of care home visit, may amount to deprivations of liberty, if the person concerned does not have capacity to consent to the same. If you have concerns about family and friends and deprivation of liberty, you should seek legal advice, to ensure the care provider is meeting their obligations