Deprivation of Liberty Safeguards (DoLS)
This page contains information relating to the Mental Capacity Act 2005 Deprivation of Liberty Safeguards (DoLS)
- What are the Deprivation of Liberty Safeguards (DoLS)?
- Why were these safeguards introduced?
- What is deprivation of liberty and how can it be identified?
- What changed?
- Shared Lives
- ‘Not free to leave’
- What constitutes ‘continuous supervision and control’?
- “Err on the side of caution”
- Procedure for Authorisation
- What if you are concerned that a family member of friend, who you believe lacks mental capacity, is being unlawfully deprived of their liberty?
- Related documents
- Booklets and leaflets from office of the public guardian
What are the Deprivation of Liberty Safeguards (DoLS)?
The Mental Capacity Act 2005 covering England and Wales, provides a statutory framework for acting and making decisions on behalf of people who lack the capacity to make decisions for themselves. These can be small decisions such as what clothes to wear or major decisions such as where to live. It is recognised that there are times when the measures put in place will restrict a person’s movements, albeit in their best interests and proportionate to the risk of harm, to a point where they may become deprived of their liberty.
Why were these safeguards introduced?
They were introduced to prevent breaches of the European Convention on Human Rights (ECtHR) following a judgement commonly referred to as ‘Bournewood’. The case concerned a gentleman with autism and a learning disability, who lacked the mental capacity to decide whether he should be admitted to hospital for specific treatment. He was admitted on an informal basis under common law in his best interests. This decision was challenged by his carers. To prevent further breaches of the ECtHR, the Mental Capacity Act 2005 was amended to provide safeguards for people who lack capacity specifically to consent to treatment or care either in a care home or hospital. The DoLS came into force in 2009.
What is deprivation of liberty and how can it be identified?
Prior to March 19th 2014, there was not a clear definition of what constituted a deprivation of liberty. Guidance included descriptions of decisions made by the court which could be used to evaluate whether a deprivation of liberty was occurring. Each individual case had to be assessed on its own circumstances as no two cases were likely to be identical. It was also important to be aware of the factors that the courts had identified as being important in identifying what may have constituted a deprivation of liberty. Whilst not an exhaustive list, the following factors were considered:
- Restraint is used, including sedation, to admit a person to an institution where the person is resisting admission
- Staff exercise complete and effective control over the care and movement of a person for a significant period
- Staff exercise control over assessments, treatment, contacts and residence
- A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate
- A request by carers/family members for a person to be discharged to their care is refused
- The person is unable to maintain social contacts because of restrictions placed on their access to other people
- The person loses autonomy because they are under continuous supervision and control.
Guidance also suggested that it was probable that no one single factor would in itself determine whether the overall set of steps being taken in relation to the relevant person, would amount to a deprivation of liberty.
On 19 March 2014, the Supreme Court handed down its judgment in the case of “P v Cheshire West and Chester Council and another” and “P and Q v Surrey County Council”.
Since the introduction of the DoLS, care homes and hospitals have routinely applied to local authorities (their “Supervisory Bodies”) for a Standard Authorisation, to deprive a person of their liberty. The judgment has increased the domains in which a deprivation of liberty can now occur and include:
- Residential care homes
- Post 18 residential college provision
- Nursing care homes.
- Some types of supported living (most probably where the level of support is 24/7, some cases it could be less than 24/7 if the level of support is intense).
A deprivation of liberty for a person must be authorised in accordance with one of the following legal regimes: a deprivation of liberty authorisation or Court of Protection order under the Mental Capacity Act Deprivation of Liberty Safeguards, or (if applicable) under the Mental Health Act 1983, or, in some rare situations, under the inherent jurisdiction of the High Court.
An ‘acid test’ was derived as a way to identify whether a person is being deprived of their liberty, namely:
Is the person free to leave?
Is the person subject to continuous supervision and control?
‘Not free to leave’
The focus is not on the person’s ability to express a desire to leave, but on what those with control over their care arrangements would do, if they did try to leave.
‘Not free to leave’ does not mean the person can never leave the premises in which they reside. In each of the cases before the Supreme Court, the individual left their place of abode frequently. It does not mean that someone cannot relocate, either.
What it means is that any leaving is controlled by others (either for a short period with the intention of returning, or for a long period with no intention of returning).
There are many people who will spend hours every day away from their supported living, shared lives, foster care placements – they may go to day care, out to activities, out to a pub or for a meal, to visit family members, BUT if they remain supervised and controlled by others while they are out and about, and have to return to their placement at the end of their time away, that means they are not free to leave.
What constitutes ‘continuous supervision and control’?
The decision of Cheshire West is very new so it is difficult to provide an exhaustive list of all the scenarios that would answer this question. However, consideration should be given to the following:
It is necessary to assess the degree of ‘control’ by looking at the nature, manner, intensity and duration of intervention of the intervention, for example 1:1 support or care.
‘Continuous supervision and control’ does not mean that the person is always within the line of sight of another person. It does not mean 24/7 contact. It simply means that a person’s life is continuously subject to the oversight of other people as part of their care or support plan.
‘Control’ here means that the critical decisions about what the person does and where they go are made by (or at least are subject to the approval or veto of) another.
It is important to draw a distinction between what is considered to be support and control. Support is what the person needs help with, whereas, control relates to what others want the person to do.
24/7 care may also include assistive technology which amounts to completing the requirement of full and effective control.
It is now clear that if a person lacking capacity to consent to the arrangements is subject both to continuous supervision and control and not free to leave, they are deprived of their liberty.
It may not be a deprivation of liberty, although the person is not free to leave, if the person is not supervised or monitored all the time and is able to make decisions about what to do and when, that are not subject to agreement by others.
"Err on the side of caution”
The Supreme Court emphasised that those making assessments should “err on the side of caution”; if there is any doubt whether a person meets the above criteria, speak to the DoLs Helpdesk.
The following factors when determining what constitutes a DoL are now NOT relevant:
- The reason or purpose behind the placement/arrangements
- The person’s disability
- The relative normality of the person’s situation
- Quality or appropriateness of the placement
- The person’s compliance, happiness or awareness
- Absence of an alternative.
Wiltshire Council has taken a two pronged approach to managing the DoLS process for its customers by creating two separate pathways.
A deprivation of a person’s liberty whilst accommodated in a care home or hospital can be authorised by ‘Supervisory Bodies’, roles assumed by local authorities. In order to obtain authorisation to deprive a person of their liberty, ‘Managing Authorities’ (care homes and hospitals) are responsible for applying for an authorisation. They can do this by contacting the DoLS Helpdesk which would in turn give advice about the process to be followed or by directly faxing a request for an authorisation to the DoLS Helpdesk. The following process would need to be followed:
Complete and sign Form 4 (Standard Authorisation) and Form 1 (Urgent Authorisation) if immediate legal authorisation is required.
Care home or hospital designated member of staff phones 01225 756598 to say fax for DOLS authorisation is to be sent shortly.
Form 4 and Form 1 faxed to 01225 718274 (safe haven fax within Social Care Helpdesk) and person sending fax keeps received receipt.
Once an application has been received, the Supervisory Body will follow the assessment process before authorising a deprivation of liberty. In Wiltshire, the DoLS and Mental Capacity Act Professional Lead Julie Hills, manages the DoLS service and assessment process on behalf of the Supervisory Body.
At the point of reviewing a Wiltshire Council funded customer’s care plan or being referred for a new social care assessment with a view to receiving a funded care service, consideration will be given by the identified care manager as to whether the customer meets the ‘Acid Test’. If so, they will follow guidance issued to Council employees which sets out the process to follow, when making an application to the Court of Protection to authorise the deprivation of liberty.
What if you are concerned that a family member of friend, who you believe lacks mental capacity, is being unlawfully deprived of their liberty?
Please ring the DoLS Helpdesk on 01225 756598 for further advice
Who do you contact for the Independent Mental Capacity Advocate (IMCA) service?
Please ring SWAN Advocacy Network on 01722 341851 and speak with the IMCA Lead or one of the other trained IMCA advocates
Families, carers, care homes & hospitals – please ring 01225 756598
Telephone: 01225 756598
Out of hours:
Fax: 01225 718274
Deprivation of Liberty Safeguards
Booklets/Leaflets from the Office of the Public Guardian