The Deprivation of Liberty Safeguarding (DOLS)

The Deprivation of Liberty was included in the Mental Capacity Act of 2007 but became law on the 1st April 2009. The Deprivation of Liberty Safeguarding came about when the European Court of Human Rights ruled that a man diagnosed with autism was deprived of his liberty and that this had been in breach of Article 5 of the European Convention on Human Rights (ECHR). Deprivation of liberty was not defined. The court merely confirmed that it was different from restriction of liberty and said that the difference was one of degree or intensity.

Therefore the Mental Capacity Act allowed restrictions to be placed upon the liberty of people lacking capacity. The amendments set out a new procedure in England and Wales for depriving people lacking capacity of their liberty in certain circumstances.

The deprivation of liberty provisions apply to people aged 18 or over who have a disorder or disability of the mind, who lack the capacity to give their consent to plans made for their care and who are deprived of their liberty within the meaning of Article 5 ECHR despite not being subject to formal detention under the Mental Health Act 1983 (MHA 1983).

The provisions cover hospitals (NHS or private) and care homes registered under the Health and Social Care Act 2008 in England (the Care Standards Act 2000 in Wales) and such deprivation will be unlawful unless the institution obtains an authorisation under the new provisions. In other settings, the deprivation will be unlawful unless the Court of Protection has made an order. Not all admissions to hospitals and care homes involving a person who lacks capacity to decide whether to be admitted will require an authorisation. According to the Code of Practice to the Deprivation of Liberty Safeguards, the new provisions exist only to provide a proper legal process and suitable safeguards in circumstances where deprivation of liberty is an unavoidable necessity in a person’s own best interests. Every effort should be made to prevent deprivation of liberty becoming unavoidable.

The Deprivation of Liberty Process

Requesting an authorisation

Under the provisions, a body managing a care home (the “managing authority” is the registered manager or provider) must identify every person incapable of consenting to admission who is, or is at risk of being, deprived of his or her liberty. For each “relevant person” the managing authority must apply to a “supervisory body” for a standard authorisation for depriving that person of his or her liberty.

Who is the supervisory body?

From 1 April 2013 in England, regardless of whether the person is in hospital or in a care home, the supervisory body will now be the local authority, normally the local authority for the area in which the person is ordinarily resident, or, if the person is not ordinarily resident in the area of a local authority, the area in which the hospital or care home is situated.

Standard and urgent authorisations

The managing authority must request a standard authorization if it appears likely that a resident is accommodated in circumstances that amount to a deprivation of liberty or it appears that this will be the case at some time during the next 28 days. In the meantime, an urgent authorization may be issued by the care home itself if certain criteria are met.

The government’s original proposals were amended during the passing of the MHA 2007 to allow a third party, who is concerned that there is an unauthorised deprivation of liberty taking place (e.g. someone who is not the person subject to DOLS or someone from the managing authority), to apply to the supervisory body to assess whether the person is deprived of liberty. If the outcome of this assessment is that there is an unauthorised deprivation of liberty, then the full assessment process must be completed as if an authorisation had originally been applied for.

Six assessments

The deprivation of liberty provisions will only apply to people 18 or over who have a disorder or disability of the mind, who lack the capacity to give their consent to plans made for their care and who are deprived of their liberty within the meaning of Article 5 ECHR despite not being subject to formal detention under the MHA 1983.

Even where the provisions do apply, an authorisation can only be granted where it is:

  • in the best interests of the person that they be detained as a resident of the hospital or care home in circumstances which amount to a deprivation of liberty
  • necessary that the person be a patient in the hospital or care home in order to prevent harm to him or her a proportionate response to the likelihood of suffering harm and the seriousness of that harm.

An authorisation must not conflict with a valid decision by an attorney or Court of Protection appointed deputy and may not be sought for giving treatment in a hospital where the MHA 1983 could be used instead or if there is any evidence that the person objects or would object.

In order to ensure that the deprivation of liberty provisions apply and that the criteria are met the supervisory body must obtain six written assessments of the relevant person. These relate to age, mental health, mental capacity, best interests, eligibility and objections.

Age assessment

The age of the person will have to be established to ensure that the deprivation of liberty provisions apply. The person undertaking the age assessment could be a person conducting one or more of the other assessments.

Mental health assessment

This is to confirm that the person has been diagnosed as having a mental disorder within the meaning of the MHA 1983. This assessment must be carried out by a doctor.

Mental capacity assessment

The capacity of the person to make a decision as to whether they should be accommodated in the relevant hospital or care home will need to be assessed. It is likely to be undertaken by appropriately qualified professionals to perform the assessment, such as social workers, nurses and occupational therapists.

Best interests assessment

This involves two stages. It must first be established whether deprivation of liberty is occurring, or is going to occur. If so, the second stage is to assess whether it is in the best interests of the person to be deprived of liberty, whether it is necessary for the person to be deprived in order to prevent harm to themselves, and also whether the detention is a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm.

If deprivation of liberty is not occurring and not going to occur then there is no need for this second part of the assessment to be undertaken.

The best interests assessor will take into account the views of friends, family members, informal carers and professionals involved in the person’s care. If the person is unbefriended, an Independent Mental Capacity Advocate (IMCA) will be appointed to support and represent them during assessment. Regulations specify that the best interests assessment must be undertaken by an Approved Mental Health Professional (AMHP), social worker, nurse, occupational therapist or chartered psychologist with appropriate skills.

If the best interests assessment supports deprivation of liberty in the care home or hospital, the assessor should state for how long any authorisation should be given, with a maximum period of 12 months. The assessor can also recommend conditions to be attached to the authorisation, for example concerning contact with family members.

Where the assessor concludes that the best interests requirement is not met but the person is being deprived of her or his liberty, a statement to that effect must be included in the assessment report.

Eligibility assessment

It must be confirmed that the person is not detained under the MHA 1983 or subject to a conflicting requirement under that Act such as being required to reside somewhere else under guardianship, for example. If the person is unable to state their objection, their behaviour, wishes, feelings, views, beliefs and values (present and past) should be taken into account.

If there is reason to think that, if able to do so, the person would object, it should be taken as the person objecting. If the assessment concludes that the person is not eligible but the best interests assessment concludes that deprivation of liberty is required, it may be appropriate to use the MHA 1983. The eligibility assessment must be carried out either by a MHA who is also a section 12 approved doctor or a best interests assessor who is also an AMHP.

No refusals assessment

It must be ascertained whether an authorisation would conflict with a refusal on behalf of a person who lacks capacity to consent. A “refusal” for deprivation of liberty purposes includes a valid advance decision relating to some or all of the treatment that the person would receive if an authorisation was granted. It also includes a valid decision by an attorney or Court of Protection appointed deputy. The “no refusals” assessment can be undertaken by a person conducting one or more of the other assessments.

All assessments must be completed within 21 days from the date the supervisory body receives the request from a managing authority. Where an urgent authorisation is in force, the assessments will have to be completed before that authorisation expires.

Any “equivalent assessment” already made may be used instead of obtaining a fresh assessment. An equivalent assessment is one carried out in the previous 12 months irrespective of whether it was made in respect of a deprivation of liberty authorisation, as long as it meets all the necessary requirements and the supervisory body is satisfied that there is no reason why it should no longer be accurate. There is no time limit on the use of an age assessment.

Regulations also set out who can carry out the particular assessments and the training and qualifications requirements. There must be a minimum of two assessors and the mental health and best interests assessments have to be carried out by different people. It is permissible for the best interests assessor to be an employee of the supervisory body or managing authority but they must not otherwise be involved in the person’s care. Neither must the best interests assessor be working in any care home or hospital where the relevant person is, or would be residing. There are also bars on the assessor having a financial interest in the care of the person being assessed and being related to the person or someone else with a financial interest in the person’s care.

It is acceptable for the supervisory body and managing authority to be the same, for example where a local authority owns the care home where the person is, or will be, residing. However, in this situation, the best interests assessor cannot be an employee of the supervisory body or managing authority.

Relevant person’s representative

A “relevant person’s representative” must be appointed by the supervisory body when a standard authorisation is granted. The role of the representative is to keep in touch with the relevant person and to represent and support them in all matters relating to the authorisation.

The representative may request a review or make an application to the Court of Protection.

Representatives must;

  • be aged 18 or over
  • be willing to be appointed and be able to keep in touch with the relevant person
  • not be prevented by ill health from carrying out the role
  • be someone independent; they cannot be engaged in providing care and treatment for the relevant person in a professional capacity or for remuneration.

A person must be deprived of liberty for the shortest time necessary to protect them from harm. The time period of an authorisation will be set on a case-by-case basis; the assessor will look at the person’s circumstances and the likelihood of change and make a recommendation, which is based on the person’s best interests. This must be no longer than recommended by the best interests assessor and for a maximum of 12 months.

The Court of Protection

The Court of Protection was created by the MCA to oversee actions taken under the Act and resolve any disputes that involve mental capacity matters. The court has the same authority as the High Court and appeals can be made against its decisions, with permission, to the Court of Appeal.

When making any decision, the Court of Protection must apply all the principles set out in section 1 of the MCA. In particular, it must make a decision in the best interests of the person who lacks capacity to make the specific decision.

Powers of the Court of Protection

The Court of Protection has the power to:

  • decide whether a person has capacity to make a particular decision for themselves
  • make declarations, decisions or orders on financial or welfare matters that affect people who lack capacity to make such decisions
  • appoint deputies to make decisions for people lacking capacity to make those decisions (see below)
  • decide whether a Lasting Power of Attorney or Enduring Power of Attorney is valid.
  • remove deputies or attorneys who fail to carry out their duties
  • decide on the lawfulness of Deprivation of Liberty Safeguards authorisations and resolve disputes regarding the Deprivation of Liberty Safeguards

There will usually be a fee for applications to the Court of Protection, although in certain circumstances a person will be eligible for a fee exemption.

The enforcement of decisions made by the Court of Protection is supervised by the Office of the Public Guardian.
More specialist advice can be obtained from the following organisations:

  1. The Law Society
    0870 606 2555
  2. Civil Legal Advice
    0845 345 4345
  3. The Office of the Public Guardian
    0845 330 2900
  4. The Mental Health Lawyers Association has a find a lawyer service
  5. The Ministry of Justice provides a guide for families, friends and carers of people who may lack capacity
    and booklets on various aspects of the MCA, including IMCAs.