This briefing summarises the Deprivation of Liberty Safeguards (DoLS), an amendment to the Mental Capacity Act 2005. It also introduces Liberty Protection Safeguards (LPS), the Law Commission’s proposed replacement for DoLS.
DoLS ensures people who cannot consent to their care arrangements in a care home or hospital are protected if those arrangements deprive them of their liberty. Arrangements are assessed to check they are necessary and in the person’s best interests. Representation and the right to challenge a deprivation are other safeguards that are part of DoLS.
Liberty Protection Safeguards (LPS): In July 2018, the Government published a Mental Capacity (Amendment) Bill which will see DoLS replaced by the Liberty Protection Safeguards (LPS). Under LPS, there will be a streamlined process for authorising deprivations of liberty. Until LPS is fully implemented the current process remains. Read more: Liberty Protection Safeguards.
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 (DoLS) is the procedure prescribed in law when it is necessary to deprive of their liberty a resident or patient who lacks capacity to consent to their care and treatment in order to keep them safe from harm.
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:
If someone is subject to a high level of supervision, and is not free to leave the premises permanently, then it is almost certain that they are being deprived of their liberty. Each case must be considered on its own merits, but in addition to the two ‘acid test’ questions, if the following features are present, you must request the completion of assessments for a deprivation of liberty authorisation:
The Mental Capacity Act allows restrictions and restraint in some cases to be used in a person’s support, but only if they are in the best interests of a person who lacks capacity to make the decision themselves and only if it is necessary and proportionate to do so. The urgency of the situation would be part of the consideration of whether to apply a short term restraint or restriction, to provide care or treatment, for example.
Final decisions about what amounts to a deprivation of liberty are made by courts. The Code of Practice for the Deprivation of Liberty Safeguards (DoLS) gives examples of where courts have found people being and not being deprived of their liberty. These examples, together with other cases which have gone to the courts, should be used as a guide.
When care providers are putting together the care plans for people who are unable to make decisions about their care or where they live, they should consider whether any restrictions or restraint being proposed, in the best interests of the person, amount to a deprivation of liberty.
Ben has learning disabilities and Prader-Willi syndrome. There are concerns about his health because his weight has been increasing steadily and now stands at 120kg.
Staff in his residential home have tried to support Ben to limit what he eats and to make healthy choices but with little effect.
Ben has been assessed as lacking capacity to make decisions about the amount and type of food he eats (this is common among people with Prader-Willi syndrome). It has been proposed that it is in Ben’s best interests to stop him going into the kitchen, and always supervising him when out, to prevent him spending all his money on, or stealing, food. An application is made by the home manager for standard authorisation because they believe that the restrictions would deprive Ben of his liberty.
The Deprivation of Liberty Safeguards (DoLS) can only apply to people who are in a care home or hospital. This includes where there are plans to move a person to a care home or hospital where they may be deprived of their liberty. 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:
If any of the conditions are not met, deprivation of liberty cannot be authorised. This may mean that the care home or hospital has to change its care plan so that the person can be supported in a less restrictive way. There may be also be a need to consider asking the Court of Protection to look at the Deprivation of Liberty, supervisory bodies must seek legal advice in these cases.
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 year.
The person 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 (or renewal).
Claire has an acquired brain injury. Her GP has referred her to the local hospital for a minor operation on her foot. The doctor assessed Claire as lacking capacity to make the treatment decision herself and so after consulting Claire’s mother is proposing that it is in her best interests to have the surgery. From past experience it is known that Claire will need to be sedated throughout her stay in hospital.
This is to stop her removing the dressing and picking at the wound. On the advice of the GP, the hospital makes an application for a standard authorisation for the use of sedation which is granted before she is admitted.
A person may need to be deprived of their liberty before the supervisory body can respond to a request for a standard authorisation. In these situations the managing authority can use an urgent authorisation. Urgent authorisations are granted by the managing authority itself. There is a form that they have to complete and send to the supervisory body.
The managing authority can deprive a person of their liberty for up to seven days using an urgent authorisation. It can only be extended (for up to a further seven 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.
Brian has been living in a nursing home for the past three years. Recently he has become very agitated and distressed which is thought to be linked to his dementia. He tells people he wants to go home not remembering that he had to give his flat up when he moved into the home. He also spends a lot of time trying to open the front door which has a key pad lock on. An incident has occurred where he climbed out of his ground floor bedroom window and was only found a couple of hours later on a main road. The nursing home asks the local authority for a standard authorisation. They want to continue to use the key code so that Brian does not go out unaccompanied, and to put safety locks on some of the windows. Because of the seriousness of the recent incident, the home manager completes the form for the urgent authorisation and arranges the window locks to be fitted the same day.
The first safeguard is the assessment process for a standard authorisation which involves at least two 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. Those 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. And at all times, 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 be borne in mind.
If the person has an unpaid relevant person’s representative following an authorisation, both they and their representative are entitled to the support of an Independent Mental Capacity Advocate.
If standard authorisation is granted the following safeguards are available:
The Deprivation of Liberty Safeguards (DoLS) can only be used if a person is in hospital or a care home. If a person is living in another setting, 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 DoLS if they meet the criteria for detention under the Mental Health Act.
The DoLS 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.
DoLS should also not be used if the sole purpose of the restrictions are to protect other people, the safeguards are for the individual.
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.
The local authority is following safeguarding proceedings for Mavis, a woman with dementia who is currently living at home with her husband. They are concerned her needs are not being met because her husband is refusing the support that is being offered. It is believed that he has untreated mental health needs. Mavis was assessed as lacking capacity to decide on her residence, though clearly communicates a wish to remain in her own home.
It has been proposed that a placement in a care home would be in Mavis’s best interests. It is also believed that in the care home she will need a high level of restrictions to give her appropriate care and treatment.
Because the move is against Mavis’s wishes and those of her husband, the local authority makes a fast-track application to the Court of Protection to make a decision in her best interests. If the court authorises a move to the care home, an application will be made by the home for a standard authorisation under the DoLS.
If you are working in a care home or hospital where you think a person is being deprived of their liberty, you should see if care could be provided in a less restrictive way. If depriving the person of their liberty seems unavoidable, an application should be made for a standard authorisation at the same time as an urgent authorisation is given.
If you come across someone in another setting who may be deprived of their liberty you should bring this to the attention of the manager so they either change their care or seek authorisation. Other options are to inform the supervisory body, to make 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. (Download CQC statutory notification: Application to deprive a person of their liberty and its outcome)
In July 2018, the government published a Mental Capacity (Amendment) Bill which will see DoLS replaced by the Liberty Protection Safeguards (LPS). This passed into law in May 2019. Under LPS, there will be a streamlined process to authorise deprivations of liberty. Read more here: Liberty Protection Safeguards.
Court of Protection judgements can be found on the Bailii website. This includes cases to decide whether a person is being deprived of their liberty.
We hope this at a glance about DoLS has been helpful. Some aspects of DoLS are complex, and it is important that they are fully understood. SCIE offers e-learning, bespoke training, and consultancy support, to make sure that you and your organisation are aware of good practice and legal duties in this area. Or if you would like to talk to our team about how we can help, please complete our enquiry form.
Charity No. 1092778
Company Reg. No. 4289790
SCIE, Isosceles Head Office
One High Street
Egham TW20 9HJ
Tel: 0203 8404040
Email: info@scie.org.uk
© Social Care Institute for Excellence.
All rights reserved