Factsheet: Deprivation of Liberty Safeguards (DoLS)

1. What is a deprivation of liberty?
2. Who completes the assessment?
3. What are the Deprivation of Liberty Safeguards (DoLS)?
4. Should a deprivation of liberty be reviewed?

What is a deprivation of liberty?

A Deprivation of Liberty Safeguard (DoLS) is part of the framework introduced by the Mental Capacity Act 2005 (MCA). A person who is being deprived of their liberty as a result of their care needs is entitled to legal safeguards. This is to make sure that the restrictions in place to keep them safe are appropriate and proportionate. The Mental Capacity Act safeguards apply to people who are:

• Over 18
• Have “an impairment of or a disturbance in the functioning of, the mind or brain”
• Whose freedom is being restricted; and
• Who do not have the mental capacity to make decisions about their care or treatment

Following the recent Supreme Court’s judgement in P v Cheshire West and Chester County Council and P and Q v Surrey County Council, the test for determining whether someone is being deprived of their liberty is that the person is:

1. Not free to leave; and
2. Under continuous supervision and control

• It does not matter whether the person objects to their living arrangements or not
• It does not matter if their living arrangements are considered “normal” for people with similar cognitive impairments or disabilities
• The reason for or purpose of the placement is irrelevant

If there is a requirement for detention under s.2 or s.3 Mental Health Act 1983 (a person with a mental disorder who requires admission to hospital for assessment or treatment) then a standard authorisation is not appropriate. In other words, a Deprivation of Liberty Safeguard authorisation is not a short cut to avoid “sectioning”.

Who completes the assessment?

A Mental Health assessor checks whether the person is suffering from a mental disorder. 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 with the Mental Health assessor, particularly how the deprivation might affect their mental health. They may also consult other professionals involved in the person’s care, any current carers, family members or close friends of the person. These assessors are appointed by the supervisory body which is usually the local authority, but may 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. The assessors should always look at whether there is a less restrictive way of providing the care or treatment.

What are the Deprivation of Liberty Safeguards (DoLS)?

The key elements are:

• That the person is provided with a representative if necessary (a relative, friend or carer, or an Independent Mental Capacity Advocate – IMCA)
• That the representative is given the right to challenge the deprivation through the Court of Protection
• That the representative is able to protect the person’s rights by maintaining regular contact
• That the deprivation is reviewed and monitored regularly

Should a deprivation of liberty be reviewed?

Any deprivation of liberty should be reviewed regularly by the managing authority (care home/hospital) and the supervisory body (local authority or NHS) to check whether the authorisation is still needed and to check that the qualifying requirements are still present. A review should take place immediately if there is any change of circumstance, such as a person regaining mental capacity or agreement upon a less restrictive way of caring for them. If the authorisation is no longer necessary, it should be removed. A Deprivation of Liberty should last for the shortest possible time and up to a maximum of 12 months. During this time, the person’s representative should be kept updated with information about the person’s treatment and care.

If you would like help and further information on how to protect a family member or friend who may be subject to a deprivation of their liberty, then contact our Community Care Law Team on 01273 609911.