Deprivation of Liberty Safeguards (DoLS)

The Deprivation of Liberty Safeguards are part of the Mental Capacity Act. They provide additional protection for people in care homes or hospitals who lack capacity to make decisions about their care and support.

Sometimes it may be necessary to restrict someone's liberty to keep them safe and to make sure they get the care or treatment they need. Liberty (or freedom), is a human right. The right to liberty and security is known as Article 5, and comes from the European Convention on Human Rights. Article 5 says that a person's freedom can't be taken away except in certain situations and only when specific procedures are in place.

If a person can't consent to the arrangements in a care home or hospital, this could mean they are deprived of their liberty. The DoLS protect a person's human rights and they are the legal framework to authorise a deprivation of liberty where this is in the person's best interests.

Care homes and hospitals must apply to the local authority if they identify that a person's care means they are being deprived of their liberty. Our DoLS team arranges the necessary assessments. A DoLS Signatory will scrutinise the assessments and make a decision about whether the DoLS is authorised or not.

The safeguards ensure:

• assessments are completed by specially trained assessors
• that the arrangements are in the person's best interests and are the least restrictive option available
• the person is appointed someone to represent them
• the right to advocacy for the person and their unpaid representative
• the person is given a legal right of appeal over the arrangements
• the arrangements are reviewed and continue for no longer than necessary

What is a deprivation of liberty?

Liberty means being free to do the things you want to do, when you want to do them. A person's liberty can only be taken away in certain circumstances and only in ways set out in law.

The Mental Capacity Acts says that restrictions and restraint can be used to support someone but only if these are in the best interests of the person lacking capacity to make the decision themselves. Any restrictions and restraint must not be more than is necessary and proportionate to the risks involved.

Restrictions can take different forms:

1. direct actions - for example medication that manages behaviour, or physical restraint
2. "what if" restrictions - for example, what would staff do if the person tried to leave?
3. restrictions on access - for example locked doors to outside areas, being escorted when outside of the care setting

In 2014, the Supreme Court made a judgment about deprivation of liberty. They said that when a person lacks capacity to consent to their care arrangements, these questions need to be asked as an "acid test" for deprivation of liberty:

1. is the person free to leave and;
2. is the person subject to complete or continuous supervision and control

If this acid test is met, then the person is considered to be deprived of their liberty.

If a person lacks capacity to consent to care arrangements involving a Deprivation of Liberty, authorisation is needed either through the Deprivation of Liberty Safeguards (for care homes and hospitals) in the Mental Capacity Act or from the Court of Protection (in other settings, including Supported Living).

Sometimes people living in supported living, shared lives accommodation, people living in their own homes with support or people attending day services will receive care which means they are being or may be deprived of their liberty. For some people, this will be necessary to ensure they are safely cared for in the community and receive the care and attention they need. In these cases, where the state is involved (for example where the Local Authority has arranged or pays for some or all of the care) this deprivation must be authorised by the Court of Protection. We refer to these cases as Community DoL cases.

Any person with a Deprivation of Liberty Safeguards Authorisation and the person speaking up for them (the Relevant Person's Representative) can ask the Court of Protection to look at the authorisation if the person deprived of liberty doesn't agree with it. Any other person can also apply to the Court about a DoLS, but would need permission to do so.

Why do we need the Deprivation of Liberty Safeguards (DoLS)?

The DoLS provide extra protection for people in care homes and hospitals who lack the capacity to agree to stay there to receive care or treatment. When a person lacks mental capacity, it means that they are unable to make a particular decision or take a particular action for themselves, at the time the decision or action needs to be taken.

When someone lacks mental capacity, they are unable to do one or more of the following:

• understand information given to them
• retain that information for long enough to be able to make a decision
• weigh up the information available to make a decision
• communicate their decision

The Mental Capacity Act 2005 is the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. It introduced a number of laws to protect these individuals and ensure that they are given every chance to make decisions for themselves. It ensures that any decision made or action taken, on behalf of a person who lacks the capacity to make that decision or take that action themselves, is made in their best interests.

Visit the Department of Health website for a summary of the Mental Capacity Act 2005. 

The DoLS process

It is the Managing Authority's (care home or hospital) responsibility to request authorisation of a Deprivation of Liberty. They must apply to a Supervisory Body for authorisation where it has been identified that a person who lacks capacity is being, or risks being, deprived of their liberty. The Supervisory Body for Stockton-on-Tees is Stockton-on-Tees Borough Council.

There are two types of authorisation.

Standard Authorisation

When a supervisory body gives a standard authorisation of DoL, the Managing Authority may lawfully deprive the relevant person of their liberty in the care home or hospital named in the authorisation.

Standard authorisations can be granted for no more than 12 months.

Urgent Authorisation

Managing Authorities can give an urgent authorisation for deprivation of liberty where:

• the need for the person to be deprived of their liberty is so urgent that deprivation needs to begin before a standard authorisation request is made, or
• a request for a standard authorisation has been made but the managing authority believes that the need for the person to be deprived of their liberty has become so urgent that the deprivation of liberty needs to begin before the request is dealt with by the supervisory body.

This means that an urgent authorisation can never be given without the supervisory body having a reasonable expectation that the qualifying requirements for a standard authorisation are likely to be met.

Urgent authorisations should normally only be used in response to sudden unforeseen needs. However, they can also be used in care planning.

An urgent authorisation cannot be granted for more than 7 days.

In exceptional circumstances, however, it may be extended for a further period of 7 days, but this must be authorised by the Supervisory Body.

What happens once an authorisation request is made?

The DoLS team will arrange for a number of assessments which are:

• mental health, mental capacity and eligibility assessments (completed by an independent Mental Health Assessor)
• best interests assessment (completed by a qualified Best Interests Assessor, usually a social worker, occupational therapist or nurse)

When the completed assessments have been returned the assessments are checked and if appropriate, the Deprivation of Liberty will be authorised.

How long does a Deprivation of Liberty authorisation last?

There is no standard length of time for a Deprivation of Liberty to be authorised, as each authorisation will be decided on an individual basis. The maximum length of time that an authorisation can be granted for is 12 months.

Once an authorisation is in place, it can be reviewed at any time. Anybody with an interest in the authorisation can request a review.

What happens at the end of a period of authorisation?

If it is felt that a Deprivation of Liberty is still occurring, or is still necessary, a new application for authorisation must be submitted to the Supervisory Body.

If the Deprivation of Liberty is no longer required, the authorisation will be reviewed and ended accordingly.

For further information please contact the DoLS Team:

• telephone: 01642 528460
• email: DOLSAdministration@stockton.gov.uk

Visit the Association of Directors of Adult Social Care Services website for a DoLS summary guide.