Information about the Deprivation of Liberty Safeguards (DoLS).
The Deprivation of Liberty Safeguards
The Deprivation of Liberty Safeguards are part of the Mental Capacity Act 2005 (amended by Mental Health Act 2007). It applies to anyone:
- who is aged 18 or older
- has an impairment of, or a disturbance, in the functioning of, the mind or brain
- lacks the capacity to give consent to their care or treatment
- receiving care or treatment that might amount to a deprivation of liberty under Article 5 of the European Court of Human Rights
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
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:
- comes under the deprivation of liberty safeguards
- is deprived of their liberty, and if so, whether it is in their best interests
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.
Relevant Person Representative (RPR)
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:
- visit the person regularly to ask their views and see that they are being cared for well
- check that the care setting is keeping to any conditions of the DoLS authorisation
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.
Supreme Court judgement
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.
Duties under the safeguards
Hospitals and Care Homes (‘managing authorities’) have a duty to:
- provide care and treatment in ways that do not deprive a person of their liberty
- if this is not possible, then apply to the ‘supervisory body’ for authorisation of the deprivation of liberty
- make an urgent authorisation (for seven days) where a deprivation of liberty is already occurring.
The Council (‘supervisory body’) - has a duty to:
- assess any person for whom the ‘managing authorities’ request a deprivation of liberty
- authorise a deprivation if it is necessary in the best interests of a person to whom the Safeguards apply
- set any necessary conditions to make sure the person’s care/treatment meets their needs in their best interests
- set a time-scale for how long a deprivation can last
- keep records of who is being deprived of their liberty
Key terms and descriptions
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:
- In the case of NHS hospitals, the NHS Trust, Foundation Trust or other authority that manages the hospital is the managing authority.
- In the case of care homes (homes providing accommodation, together with personal or nursing care) and independent (private) hospitals, the managing authority is the person registered under Part 2 of the Care Standards Act 2000 in respect of the relevant care home or hospital.
- Whether a private nursing home is a care home or hospital depends on its registration – the managing authority is the person registered.
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:
- Standard authorisation – given by the supervisory body, after completion of the statutory assessment process, which gives authority for deprivation of liberty for a period of up to 12 months
- Urgent authorisation – given by a managing authority to allow a deprivation of liberty for up to seven days whilst a standard authorisation is being obtained. This can be extended for up to a further seven days by the supervisory body if there are exceptional reasons why it has not been possible to decide on a request for standard authorisation and it is essential that the detention continues
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;
- Age assessment
- No refusals assessment
- Mental capacity assessment
- Mental health assessment
- Eligibility assessment
- Best interests assessment
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.
Contact us
For more information, you can contact the Deprivation of Liberty Safeguards (DoLS) Team.
Phone
020 8770 5000
Email
dols@sutton.gov.uk
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Sutton Council
Civic Offices
St Nicholas Way
Sutton
SM1 1EA
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