The Court of Protection can have its own language and something that we are often asked about is the Deprivation of Liberty Safeguards (which are sometimes known as DoLS). Below we have created a factsheet of the questions we are most frequently asked.
What are the Deprivation of Liberty Safeguards (DoLS)?
The Deprivation of Liberty Safeguards are part of the Mental Capacity Act 2005 and were introduced to protect the most vulnerable members of society. They apply in England and Wales only.
Why are the Deprivation of Liberty Safeguards put in place?
Article 5 of the Human Rights Act states that everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty unless in accordance with a procedure prescribed by law.
So, being deprived of your liberty is incredibly serious and the DoLS regime was created as the procedure prescribed by law to ensure that when someone is deprived of their liberty, it is done properly. The Deprivation of Liberty Safeguards were created to protect people from having their liberty taken away without a good reason and also to ensure that when this does happen, you have a right to challenge it.
Who do the Deprivation of Liberty Safeguards apply to?
It is important to know that DoLS only applies to people who are in care homes and hospitals.
It is possible to be deprived of your liberty in your own home or in other settings such as supported living or sheltered accommodation. But, in these cases, any deprivation of liberty would have to be authorised by the Court of Protection.
If you are in a care home or hospital, there are then six criteria which must be met for the DoLS regime to apply, and these are set out below in our section on how a DoLS is authorised.
How is a Deprivation of Liberty authorised?
If a hospital or care home suspect that someone in their care is deprived of their liberty and lacks capacity to consent to that deprivation, they should send a request to the Local Authority (or a Health Board if it’s a hospital in Wales) applying for a DoLS. This request must be made in writing. The public body that are responsible for authorising the DoLS are known as the ‘supervisory body’.
Once a request is received from a hospital or care home, the supervisory body must carry out six assessments. These are:
This is simply to make sure that you are over the age of 18. This will generally be quite straight forward!
No refusals assessment
This is to make sure that there isn’t an existing authority in place which would conflict with the DoLS. An example of this would be if you have completed an advance decision to refuse a certain treatment and that treatment is the reason the DoLS is being requested.
Mental capacity assessment
This assessment is to see whether you have capacity to decide whether or not you should be accommodated in hospital or a care home to be given care or treatment. The starting position should always be that you are presumed to have capacity to make this decision.
Mental Health assessment
This is to confirm that you have been diagnosed with a mental disorder as set out within the Mental Health Act 1983. This would include things such as dementia, autism or a learning disability.
This is to confirm that you aren’t detained under the Mental Health Act 1983 (this is sometimes known as being ‘sectioned’). It is also to check that the DoLS wouldn’t be inconsistent with any other obligation under the Mental Health Act (such as guardianship).
Best interests’ assessment
This is always the longest and most detailed assessment that we receive. The assessment has to set out many things:
- Whether you are or are going to be deprived of your liberty – this involves considering whether you are subject to continuous supervision and control and where you are free to leave your placement
- Whether it is in your best interests to be deprived of your liberty
- Whether it is necessary for you to be deprived of your liberty to prevent harm to yourself
- Whether the deprivation of liberty is a proportionate response to the likelihood of you suffering harm and the seriousness of that harm.
When are the Deprivation of Liberty Safeguards put in place?
All of the above criteria must be met, and all six assessments must be completed before a DoLS is put in place. If all the requirements under the Deprivation of Liberty Safeguards are met, the Local Authority will grant what is called a standard authorisation. This is sometimes referred to as a “DoLS” to reflect the regime that has been applied.
A standard authorisation can only be in place for a maximum of 12 months. The assessments would then need to be completed again to ensure all the criteria still apply.
What if the criteria are met but there isn’t a standard authorisation in place?
If the criteria for a DoLS are met but there is not one in place, you are unlawfully deprived of your liberty and could seek damages from the Local Authority or Health Board.
Can a standard authorisation be reversed?
If there are any changes which would mean that one of the six criteria for a DoLS is no longer met, it should be reviewed, and it may be that the standard authorisation is revoked. An example of this would be if you recover from an illness and it is felt that you may have regained capacity to make decisions about your residence and care.
Challenging the Deprivation of Liberty Safeguards?
When a DoLS is granted, you must be appointed a Relevant Person’s Representative (“RPR”). This can be a family member but can also be a professional advocate. It is the role of the RPR to support you with your care arrangements and challenge them if necessary.
If you are subject to a DoLS and are not happy with your or any aspect of their care, a review can be requested from the Local Authority or Health Board. You can also make an application to the Court of Protection. This application is made under Section 21A of the Mental Capacity Act 2005, and you can ask a judge to look at the situation.
Our Court of Protection team are well versed in these kinds of court applications. We can provide you with help and advice if you are an advocate or a family member worried about a vulnerable adult.
Upcoming changes to the Deprivation of Liberty Safeguards
In 2014, the House of Lords was very critical of the DoLS regime as it was felt to be complicated and bureaucratic. Following a review by the Law Commission, it was felt that DoLS was no longer fit for purpose and a new regime was needed.
Thus, the Deprivation of Liberty Safeguards are soon to be replaced with the Liberty Protection Safeguards (LPS). Unfortunately, COVID has caused a huge number of delays in this new system being implemented. But there has finally been progress in recent weeks and the public consultation on this new piece of law has begun.
We are still some way off until this will be implemented on the ground and have no firm date from the UK Government as yet. But have no fear! We will be pulling together an LPS factsheet when the situation becomes a bit clearer. We will set out exactly how LPS will work, when it will come into force and how it would impact you and your loved ones.
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