Information about the Deprivation of Liberty Safeguards (DoLS).
The Deprivation of Liberty Safeguards are part of the Mental Capacity Act 2005 (amended by Mental Health Act 2007). It applies to anyone:
If there is no alternative but to deprive such a person of their liberty, the Deprivation of Liberty Safeguards say that a hospital or care home must apply to the supervisory body to legally authorise the deprivation of liberty.
The supervisory body is the local authority that commissions the service.
The Supervisory Body is responsible for commissioning the required assessments to determine whether the person concerned:
A Mental Health assessor checks whether the person has an impairment of or a disturbance in the functioning of the mind or brain. 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, particularly how the deprivation might impact on their mental health. They may also consult other professionals involved in the person’s care, family members, friends, or carers for the person.
These assessors are appointed by the supervisory body which is usually the local authority, but could also 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 for a maximum period of 12 months. The assessors should always consider whether there is a less restrictive way of providing the care or treatment.
The law says the Relevant Person must have a ‘Representative’ to help make sure their wishes and rights are upheld.
It is the Supervisory Body’s responsibility to make sure that the person being deprived of their liberty has a ‘Representative’.
This role is either taken unpaid by the person’s family member or a friend or by a paid professional, such as an advocate. A paid RPR may be needed if there are no family members or friends suitable or willing to be an RPR.
During a DoLS authorisation, the RPR will:
If necessary, an RPR may request a review of the authorisation when necessary or make an application to the Court of Protection to get the authorisation changed or ended.
Even when someone is unable to tell their RPR what they want, the RPR will use a range of approaches to find out their views as far as possible and safeguard their rights.
The Safeguards also allow people the right of appeal against a decision in a court of law.
On 19 March 2014, the Supreme Court handed down its judgements in the cases of P vs Cheshire West and Chester Council and another and P and Q vs Surrey County Council.
The Supreme Court found that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances: 'The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements'.
The judgements suggest that the definition of a deprivation of liberty is wider than previously thought.
The Supreme Court held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This includes a placement in a supported living arrangement in the community.
Where there is, or is likely to be, a deprivation of liberty in such placements, this situation is not covered by the safeguards and it must be authorised by the Court of Protection.
Hospitals and Care Homes (‘managing authorities’) have a duty to:
The Council (‘supervisory body’) - has a duty to:
The Deprivation of Liberty Safeguards introduced a number of new terms to describe the people who may be subject to the safeguards and those representing and supporting them, as well as those involved in operating the Deprivation of Liberty Safeguard (DOLS) procedures. These terms are described below.
Both the Mental Capacity Act (MCA), as amended, and the Deprivation of Liberty Safeguards (DOLS) Code of Practice refer to the ‘relevant person’ to describe a person who is, or may become, deprived of their liberty. It can therefore be used for someone for whom a request for a DOLS authorisation has or is being made, or for someone who is already subject to a DOLS standard or urgent authorisation.
Describes the body, or sometimes the person, with management responsibility for the hospital or care home in which a person is, or may become, deprived of their liberty. The managing authority has management responsibility for the providers of care or treatment:
The supervisory body is responsible for dealing with requests from the managing authority for a standard authorisation to deprive someone of their liberty. The supervisory body is now the Local Authority. in which the person is ordinarily resident.
The supervisory body is also responsible for appointing assessors and commissioning the necessary statutory assessments, to enable it to decide whether to grant or refuse authorisation for deprivation of liberty.
The formal authorisation required to give lawful authority to deprive someone of their liberty in a care home or hospital for the purpose of giving care or treatment in their best interests. Two mechanisms are available:
The professionals who carry out the assessments of the relevant person, to see if the person satisfies the six qualifying requirements for a standard authorisation to deprive them of their liberty. The assessments required are;
The relevant person’s representative is an individual who is independent of the hospital or care home where the relevant person resides, who is appointed by the supervisory body to represent and support the relevant person while they are subject to a DOLS authorisation. Regulations set out who may be eligible for appointment as a representative. The Best Interests Assessor will recommend someone for appointment, usually a family member or friend, or the supervisory body may appoint a professional representative if there is no-one else eligible to act.
The IMCA service was established by the Mental Capacity Act 2005 to provide independent advocates (IMCAs) to support and represent a person lacking capacity to make specific decisions. The service is called upon especially where the person has no family, friends, or anyone to support them (other than paid carers or people providing care or treatment in a professional capacity). The supervisory body must instruct an IMCA to represent the relevant person during the assessment process for a standard authorisation, should they have no relative or friend to support them in responding to the Best Interests Assessor.
The specialist court for all issues and disputes relating to people who lack capacity to make specific decisions. Both the relevant person and their representative have the right to apply to the Court of Protection to seek a variation or a termination of a DOLS authorisation.
For more information, you can contact the Deprivation of Liberty Safeguards (DoLS) Team.
020 8770 5000
Sutton Council
Civic Offices
St Nicholas Way
Sutton
SM1 1EA
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