The Deprivation of Liberty Safeguards (DoLS) provide legal protection for vulnerable people in a hospital or care home who may be being cared for in a way which deprives them of their liberty in order to protect them from harm. These safeguards were introduced by government legislation in 2007 as part of the Mental Capacity Act 2005. If you want to know more about this legislation and the Codes of Practice which explain how the law is to be implemented, these links will be useful:
The safeguards are intended to protect the rights of people who lack the ability or capacity to make decisions about the care, treatment and accommodation they need, perhaps because of a condition like dementia, a mental health problem, profound learning disability or brain injury.
Who do the Safeguards apply to?
The Safeguards apply to people who:
- are 18 or over
- are in a residential or nursing home, or an in-patient in a hospital (NHS or private). The Health Board will complete assessments on hospital wards.
- are suffering from a mental disorder or disability of the mind, e.g. dementia, brain injury or a profound learning disability and lack the capacity to consent to arrangements made for their care, treatment and accommodation needs.
- are subject to restrictions in their care plans which amount to a deprivation of liberty
If you are concerned that a person is being deprived of their liberty who is not protected by DoLS legislation, for example; aged 16 -17 years, or is looked after at home, in a residential college or ‘supported living’ setting, the Mental Capacity Act offers alternative ways of protecting their rights. An assessment for a community Deprivation of Liberty may be required. Please contact our Deprivation of Liberty Safeguards Team for advice on 01492 575634.
What is a Deprivation of Liberty?
When a person lacks capacity to consent to their care, treatment and accommodation it is sometimes in their best interest to care for them in a way which could be considered to deprive them of their liberty.
For example, it might be necessary for care staff to stop a person leaving a care home or hospital because they would become lost or come to harm; staff might have to make most of the choices about day to day routines for a person living in a care home because they lack the capacity to make these choices themselves; in order to keep a person well and safe staff may have to know where they are 24hrs a day.
Currently a ‘Deprivation of Liberty’ is broadly defined, so even a person who is able to leave a care home on their own each day may, in certain circumstances, be considered to be ‘deprived of their liberty’.
It may not always make a difference if the person never complains about their care or doesn’t ask to leave the home or hospital, the most important factor is that they are not able to consent to their care and treatment due to lack of mental capacity.
What is the purpose of the Deprivation of Liberty Safeguards Legislation?
The Mental Capacity Act 2005, Deprivation of Liberty Safeguards exist to ensure that no one is deprived of their liberty without good reason, and that if someone needs to be deprived of their liberty, that person has specific rights. These rights are contained within the 1998 Human Rights Legislation (Article 5: The Right to Liberty & Security and Article 8: The Right to Respect for Private and Family Life).
Any deprivation of liberty the person experiences must be in their best interests, be the least restrictive possible within available resources and be proportionate to the likelihood and severity of the harm that might result from the deprivation not being in place. Independent advocates and representatives can be appointed to ensure everyone receives support during the assessment process.
The safeguards are intended to ensure that anyone who is deprived of their liberty is able to challenge the decision and that there is a regular, independent assessment of whether the deprivation continues to be in the person’s best interests.
How is a Deprivation of Liberty Safeguards authorised?
The home or hospital in which the person may be being deprived of their liberty is known as the ‘Managing Authority’.
When a Managing Authority believes they are looking after a person who lacks capacity to consent, in a way that may be depriving them of their liberty, they must apply to the ‘Supervisory Body’ to authorise this. In care homes the Supervisory Body is usually the Local Authority in which that person is ‘ordinarily resident’. In hospitals the Supervisory Body will be the Local Health Board in which the hospital is located.
When the Supervisory Body receives an application for a Deprivation of Liberty Safeguards authorisation it will appoint a ‘Best Interest Assessor’ (BIA). The BIA organises and carries out the assessments necessary to ensure that if the person is being deprived of their liberty this is being done in their best interests, is proportionate to the likelihood and severity of risks they face and is the least restrictive way within available resources to meet their needs. BIAs are expected to act independently.
During the process an assessment is carried out to look at whether the person has capacity to make decisions about their accommodation, care and treatment. The BIA will also ask a suitably qualified Doctor to assess how the person’s mental health and wellbeing could be affected by being deprived of their liberty. The Assessor will usually want to talk to the person’s family or friends. They may ask an Independent Mental Capacity Advocate (IMCA) to assist in the process. The BIA will try to find out as much as they can about the person’s wishes and feelings about their care.
After completing the assessment, if they are satisfied that all the conditions are met and the Deprivation of Liberty is in a person’s best interests, the BIA will recommend to the Supervisory Body that the Deprivation of Liberty be authorised. If the Supervisory Body authorises this it will be for a limited time - up to a maximum of twelve months.
The BIA can also make conditions or recommendations to ensure that the person’s welfare is promoted and that care is provided in the least restrictive way.
What happens when the Managing Authority has to put in place Deprivation of Liberty Safeguards urgently?
The Managing Authority can grant itself an ‘Urgent Authorisation’. These can last for up to seven days (extended by a further seven days in certain circumstances). They must at the same time apply to the Supervisory body for a Standard Authorisation.
What happens after a Deprivation of Liberty is authorised?
During the assessment the BIA or Welfare Power of Attorney, if there is one, will have identified someone to act as the person’s representative for a Deprivation of Liberty Safeguards authorisation. This is the Relevant Person’s Representative (RPR). This may be a friend, or family member or an independent representative. The person or their representative can require the Supervisory Body to review the Deprivation of Liberty Safeguards authorisation and have a right to challenge the deprivation in the Court of Protection.
The RPR is expected to have regular contact with the person and the care home, and report any concerns they have regarding Deprivations of Liberty to the Supervisory Body, for example if they think the conditions are not being met.
RPRs are encouraged to contact the Deprivation of Liberty Safeguards Team to discuss any concerns or if there is anything they are uncertain about.
Both the person and their RPR can have access to the support of an Independent Mental Health Advocate (IMCA) if they wish.
Deprivation of Liberty Safeguards are time-limited and only authorise a deprivation in a specified place for a specified time. At the end of the specified period or if a person moves, a new authorisation will be required and the process will need to be repeated.
What do I do if I think someone is being deprived of their liberty in a hospital or care home?
First of all, talk to the home manager or nursing staff and ask if they have made an application for a Deprivation of Liberty Safeguards Authorisation. If not, and you are not satisfied that the reason given is adequate, then request that they make an application.
You can also contact the Local Authority directly. If you follow the link below to ‘Deprivation of Liberty Safeguards - Revised Standard Forms’ on the Welsh Government website you will find form ‘1b’, which will provide you with a useful format for doing this.
Information for Managing Authorities
Managing Authorities should ensure that they are familiar with their responsibilities under the Mental Capacity Act 2005 and those parts of the Deprivation of Liberty Safeguards Code of Practice which apply to them. Please contact the DoLS team for information and advice.
The Code of Practice states that the Managing Authority should usually (unless there is good reason) tell the relevant person’s family, friends and carers, and any IMCA already involved in the relevant person’s case, that it has applied for an authorisation of Deprivation of Liberty.
Remember to ensure that you have considered whether there might be a less restrictive way of meeting a person’s needs and that your care plans and risk assessments around deprivation of liberty clearly explain the rationale for the measure you intend to put in place.
The forms you need to complete to put in place an Urgent Authorisation and to request a Standard Authorisation to be authorised are available on the Welsh Government website (forms 1 and 1a).
Please send the completed forms along with copies of the person’s care plans and relevant risk assessments to email@example.com.
Please note that the team operates a priority list, therefore please use the ADASS prioritisation tool and include any relevant details on the referral to enable the team to prioritise appropriately.
The Law around Deprivation of Liberty Safeguards is still developing. The information above is intended only as a general guide and is in no way to be considered as a definitive statement of the law. Please contact our DoLS team if you want more information.
You can also find independent information and advice on the websites of government, voluntary organisations and organisations which deal with health and social care law, for example The Alzheimer’s Society, Mind Cymru, The Law Commission, The Ministry of Justice and Welsh Government.