The Deprivation of Liberty Safeguards are an amendment to the Mental Capacity Act 2005. They apply in England and Wales only.
The Mental Capacity Act allows restraint and restrictions to be used - but only if they are in a person's best interests.
Extra safeguards are needed if the restrictions and restraint used will deprive a person of their liberty. These are called the Deprivation of Liberty Safeguards.
The Deprivation of Liberty Safeguards can only be used if the person will be deprived of their liberty in a care home or hospital. In other settings the Court of Protection can authorise a deprivation of liberty. Care homes or hospitals must ask a local authority if they can deprive a person of their liberty. This is called requesting a standard authorisation.
Definition of deprivation of liberty
- the person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements
Deprivation of Liberty Safeguards (DoLS)
- if a care home or hospital plans to deprive a person of their liberty, they must get permission. To do this, they must follow strict processes called the Deprivation of Liberty Safeguards (DoLS). DoLS are a set of checks that are designed to ensure that a person who is deprived of their liberty is protected, and that this course of action is both appropriate and in the person's best interests.
- definition of what counts as a deprivation of liberty is wide, and so most people with dementia living in care homes and hospitals will receive care that falls under the definition. This isn't a bad thing, however. It is often necessary to provide care in this way. DoLS offer protection to ensure that, when someone's freedom is restricted, it is both in their best interests and, where possible, done in the least restrictive way
- key elements of these safeguards are:
- to provide the person with a representative - a person who is given certain rights and who should look out for and monitor the person receiving care
- to give the person (or their representative) the right to challenge a deprivation of liberty through the Court of Protection
- to provide a mechanism for a deprivation of liberty to be reviewed and monitored regularly
The DoLS assessment
- an assessment will decide whether the deprivation of liberty is allowed to happen or not. A DoLS assessment will take place if a person with dementia is in a care home or hospital setting and it is felt that they are being, or will be, deprived of their liberty
- if the person with dementia is living in supported living, there is a different system for having a deprivation of liberty authorised.
Who requests the assessment?
- usually, the care provider - the care home or hospital - will request the DoLS assessment. In England, they would request the assessment from the local authority. In Wales, for assessments of people in care homes it would be the local authority, but for people in hospitals it would be the local health board.
Can anyone else request an assessment?
- if you feel that someone is being deprived of their liberty, you should speak to the person in charge of their care. In hospital this may be a doctor, nurse or administrator, and in residential care it will be the care home manager. The first step is to talk about whether changes can be made to the way care is provided so that the person's freedom is not restricted. However, if the person in charge of their care believes that restricting the person's freedom is necessary to keep them safe, they must apply for a deprivation of liberty authorisation
- if they have not got an authorisation, and they do not think that an authorisation is necessary, you should talk to the local authority (or local health board in Wales). You should ask them to look into the person's care arrangements and carry out an assessment, if necessary. There are template letters at the end of this factsheet that you can use
Undertaking the assessment
DoLS assessments are carried out by at least two people. They are:
- the best interests assessor
- the mental health assessor.
They are appointed by the local authority (or health board), who must ensure that they have had the appropriate level of training and experience. Generally, the best interests assessor is a qualified social worker, nurse, occupational therapist or chartered psychologist. They must not be involved in the person's care or in making any other decisions about it. The mental health assessor must be a doctor who is able to assess whether a person has a 'mental disorder' (the term used in law to describe a set of mental health conditions, including dementia) and how a deprivation of liberty will affect their mental health.
The Assessment Process:
There are six parts to the assessment. These are divided between the two assessors. Their job is to decide whether the person and the care that they receive meet the criteria for authorisation. The six parts are as follows:
- Age - Is the person aged 18 years or over?
- Mental health - Does the person have a 'mental disorder'?
- Mental capacity - Does the person lack 'capacity' (the ability) to make their own decisions about treatment or care in the place that is applying for the authorisation?
- Best interests - Is a deprivation of liberty taking place? If so, is it:
- in the person's best interests?
- needed to keep the person safe from harm?
- a reasonable response to the likelihood of the person suffering harm (including whether there are any less restrictive options and if they are more appropriate)?
- Eligibility - Is the person already liable to detention under the Mental Health Act 1983, or would they meet the requirements for detention under this Act? If they are, the Mental Health Act should apply and not DoLS
- No refusals - Does the authorisation contradict or conflict with any advance decision the person has made refusing treatment, or with any decisions made by, for example, a court-appointed deputy or someone with Lasting power of attorney?
If someone meets all the criteria, the assessors will report back to the local authority (or local health board) that the deprivation of liberty should be authorised, ie given the legal 'go ahead'.
Length of DoLs
A DoLS authorisation should last for as little time as possible, and only up to a maximum of 12 months. Each individual DoLS authorisation will state the date it lasts until. However, during this time both the care provider and local authority (or health board) should:
- make regular checks to see if the authorisation is still needed
- remove the authorisation when it is no longer needed
- provide the person's representative with information about their care and treatment
DOLS and certification of death
- From the 3rd of April 2017, it will no longer be necessary to refer all patients who die while subject to an authorisation under the Deprivation of Liberty Safeguards (DoLS) to the coroner
- Before that date, patients who died subject to DoLS were regarded as dying while in state detention, triggering an automatic requirement for an inquest.
- From Monday the 3rd of April 2017 the Coroners and Justice Act 2009 will be amended so that coroners will no longer be under a duty to investigate a death solely because the individual was subject to the DoLS at the time. These deaths will only require reporting to the coroner if the cause of death was unknown, or where the cause of death was violent or unnatural. All deaths while subject to a DoLS authorisation that occur prior to the 3rd of April 2017 will still need to be reported to the Coroner