Deprivation of Liberty Safeguards (DoLS)

Article 5 of the Human Rights Act states: "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."1

The Mental Capacity Act outlines how an individual can be deprived of their liberty in order to care for them safely, and Deprivation of Liberty Safeguards (or DoLS) are one such procedure prescribed in law that is invoked to protect the peoples and ensure their loss of liberty is lawful. Care should always be provided in the least restrictive way possible, and those responsible for providing care should explore all options.

DoLS are an amendment to the Mental Capacity Act 2005 that applies in England and Wales and can only be applied in a care home or hospital setting.

An individual is deprived of their liberty for the purposes of Article 5 of the European Convention on Human Rights if they:

  • lack the capacity to consent to their care/treatment arrangements 
  • are under continuous supervision and control 
  • are not free to leave.3

Criteria to authorise DoLS

There are six criteria that needs to be assessed before DoLS can be authorised by the local authority:4

  1. Is the individual aged 18 years or above as required?
  2. Does the individual have a mental health disorder (this includes dementia)? 
  3. Does the individual have the capacity to make their own decisions regarding treatment? 
  4. Is the use of DoLS in the individual’s best interest? Namely, will it keep them safe from harm?
  5. Does the individual meet the requirements for detention under the Mental Health Act 1983? (This would make them ineligible for a standard authorisation)
  6. Has the individual made any advanced decisions about their treatment? Is there any previous authorisation that would conflict with the authorisation of DoLS?

Once a request for DoLs has been made, a decision must be made within 21 days as to whether the person can be deprived of their liberty. If authorisation is given, one key safeguard is a person is appointed with legal powers to represent the individual – this will usually be a family member or friend. Another important safeguard is access to independent mental capacity advocates.

Who is affected by DoLS?

DoLS can only apply to people who are in a care home or hospital and if authorised, it can last for up to one year but restrictions can stop as soon as they are no longer required. If an individual is living in another setting, it is still possible to deprive the person of their liberty in their best interests but DoLS cannot be applied; this is usually done through an application to the Court of Protection.5

What should I do if you think someone is being deprived of their liberty?

The first response should be to speak to the person in charge to explore what could be done to ensure the individual’s freedom is not being restricted. In a hospital setting, this may be a doctor or a nurse; in a residential care setting, this may be the care home manager. If depriving them of their liberty is unavoidable for whatever reason, then an application should be made for an assessment to the local authority. 

A challenge can be made through a review procedure or in the Court of Protection if the deprivation of liberty is perceived as unlawful.6

What to do if you have DoLS applied to you?

To challenge a deprivation of liberty order, you can: 

  • appeal to the Court of Protection
  • ask for a review of the authorisation
  • get support from an independent mental capacity advocates (IMCA).

References

  1. HM Government. (1998). Human Rights Act 1998. London: HM Government. Available at: http://www.legislation.gov.uk/ukpga/1998/42/contents
  2. HM Government. (2005). Mental Capacity Act 2005. London: HM Government. Available at: http://www.legislation.gov.uk/ukpga/2005/9/contents
  3. Department of Health. (2015). Department of Health Guidance: Response to the Supreme Court Judgment:  Deprivation of Liberty Safeguards. London: Department of Health. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/485122/DH_Consolidated_Guidance.pdf
  4. Department of Health. (2015). Department of Health Guidance: Response to the Supreme Court Judgment:  Deprivation of Liberty Safeguards. London: Department of Health. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/485122/DH_Consolidated_Guidance.pdf
  5. Social Care Institute for Excellence. (2015). Deprivation of Liberty Safeguards (DoLS) at a glance. Available at: http://www.scie.org.uk/publications/ataglance/ataglance43.asp
  6. Leicestershire County Council. (2016). Deprivation of liberty. Available at: 
    http://www.leicestershire.gov.uk/adult-social-care-and-health/protecting-vulnerable-adults/deprivation-of-liberty/if-you-think-someone-is-being-deprived-of-their-liberty