Deprivation of liberty safeguards (DoLS) in a care home

Caring for people who lack the mental capacity to make decisions about their care sometimes involves taking away some of their liberties in some way. This is called Deprivation of Liberty.

This is because a person who lacks the mental capacity to consent to care and treatment may not be able to choose where they should live or understand what types of care they need.

What is an example of DoL (deprivation of liberty)?

In a care home, an example of deprivation of liberty could mean restricting some freedoms of a resident living with dementia to ensure their safety, including not allowing them to leave the building.

This is not necessarily a bad thing, because if a person lacks the mental capacity to make decisions about their care, decisions should be made in their best interests, such as placing a person living with dementia in a care home. However, it may result in deprivation of liberty.

What does deprivation of liberty mean?

Liberty comes under Article 5 of the European Convention on Human Rights and states everyone has the right to liberty and security of person, meaning you are free to do the things you want and live where you want. No one shall be deprived of their liberty unless in specific circumstances and in accordance with the law.

There are three key elements to deprivation of liberty:

• Objective element – the person is confined to a restricted place for a non-negligible period of time.
• Subjective element – the person does not, or cannot, consent to confinement.
• Imputable to the state – the state is responsible for the detention.

Continuous supervision and control

Deprivation of liberty means that you are under continuous supervision and control and are not free to leave, and you may lack the mental capacity to consent to these arrangements.

Even if a person is in a place where care and treatment is provided and all parties, such as care workers and family members, are happy and satisfied with the situation, the law states that even if this is the case and the conditions above are met, it is a deprivation of liberty.

The care people receive in care homes and hospitals usually involved both continuous supervision and control. In a care home, staff may control meals, make decisions about activities and bedtimes as well as medical treatment.

A person can also be deprived of their liberty if they are not allowed to leave the premises where they are cared for. Not being free to leave can be hypothetical as a care home resident may not be physically able to do so. If they tried to leave and they were stopped against their will, their liberty has been deprived.

Even though these things are what a resident needs and in their best interests to maintain good health and to stay safe, if they have not given their consent it can deprive them of their liberty.

If a person lacks the mental capacity to make decisions about their care, such as where they will live and what medical care they receive, they will not be able to give their consent, resulting in deprivation of liberty.

A person lacks the mental capacity to make decisions about if they cannot:

• Understand the information relevant to the decision.
• Retain that information.
• Use or weigh that information as part of the process of making the decision.
• Communicate their decision (whether by talking, using sign language or any other means).

As stated above, sometimes restricting liberty may be necessary to provide the resident with the care they need as they may not realise it is in their best interest. This is because if, for example, a resident with dementia is allowed to leave the care home, they may suddenly not remember where they are or how to get back, posing a risk to their health and safety.

Staff should always ensure that the care they give impose as little restriction as possible on the person receiving it and must be according to the best interest principles set out in mental capacity legislation.

How are people protected if they are deprived of their liberty?

England, Wales, Scotland and Northern Ireland all have safeguards in place concerning deprivation of liberty to protect people’s rights.

The processes vary but all aim to protect vulnerable people, ensure there are no other ways to provide the necessary care and is the least restrictive option, make sure the person deprived of liberty has a representative, ensure the freedoms taken away are reviewed regularly and the person has the right to challenge the decision.

Deprivation of liberty safeguards (DoLS) in England and Wales

Deprivation of Liberty Safeguards (DoLS) have been established in England and Wales.

It is part of the Mental Capacity Act 2005 and only applies to people in care homes and hospitals which have been granted a DoLS authorisation from a supervisory body.

The DoLS is a procedure put in place to make sure that if it is deemed necessary to deprive a person of some of their freedom to best care for them, their rights are protected.

The DoLS does not apply to people who are under 18 years of age.

Why would someone have a DoLS in place?

DoLS aims to ensure that any care that restricts a person’s liberties is appropriate and is in their best interests.

What is the difference between DoLS and LPS?

The aim of LPS had been to be simpler and easier to understand than DoLS, 

DoLS had been due to be replaced by Liberty Protection Safeguards (LPS), however the LPS scheme’s introduction has been delayed indefinitely. It is not known when the LPS will come into force.

The LPS reform aimed to:

Key elements of DoLS

• Providing the person with a representative if necessary. The representative (a relative, friend, carer or an independent mental capacity advocate) is given certain rights and should monitor the person receiving care.
• Giving the person who has been deprived of their liberty, or their representative, the right to challenge the decision through the Court of Protection.
• Enabling the deprivation of liberty to be monitored and reviewed regularly.

As managing authorities, care homes and hospitals must make an application if they believe the best way to care for someone is depriving them of liberty. They must first consider if it is in the person’s best interests and necessary to protect them from harm.

Deprivation of liberty should only be exercised if all other options have been explored and done in the least restrictive way.

To have a deprivation of liberty authorised, care home managers and hospitals must apply to the supervisory body.

A series of assessments are carried out to decide if it is needed or not by a mental health assessor (a doctor) and a best interests assessor (a trained healthcare professional). The assessments must be completed in 21 days after the request is received.

What are the six requirements for DoLS?

The DoLS assessment ensures care being given to someone is in the person’s best interests.

An assessment will decide whether the deprivation of liberty is allowed to happen or not. If the assessment decides that it is allowed to happen this is called ‘authorisation’.

There are six parts to the assessment: age, mental health, mental capacity, best interests, eligibility and no refusals.

In England, the local authority is the supervisory body.

In Wales, care homes apply to their local authorities and hospitals apply to the Local Health Board.

Are there deprivation of liberty safeguards in Scotland?

In Scotland, people who lack mental capacity to make full, informed decisions about their care are protected by the Adults with Incapacity (Scotland) Act 2000. This applies to anyone of 16 years old or over.

The Act stipulates that no intervention into the affairs of an adult should occur unless it benefits the adult, there is no reasonable alternative and the least restrictive option should be used. Present and past wishes must be considered.

Under the Act, local authorities have duties to investigate adults at risk and apply for guardianship or intervention orders to protect their rights.

The person who lacks capacity may have a welfare power of attorney (WPA) in place. The attorney can make decisions regarding where the granter (the person lacking capacity) should live, their care needs and medical treatments.

Guardianship

A local authority, family member, a close relative or friend can apply for a welfare guardianship to the Sheriff Court, which can include powers to arrange living circumstances and types of care for a person lacking mental capacity, which may amount to deprivation of liberty.

A guardian’s role is to represent the person deprived of liberty and can challenge decisions made about their care.

The guardian must be supported and supervised by a social worker, appointed by the local authority. The local authority’s chosen supervisor must regularly visit the guardian and the person lacking capacity to make key decisions about their care.

If no private individual applies for welfare guardianship, the local authority has a duty to do so.

In accordance with the Act, decisions made by the guardian must:

• Be beneficial to the person concerned.
• Be taken only when necessary.
• Consider the person’s wishes.
• Restrict the person’s liberties as little as possible.
• Only be taken when the person is unable to make decisions themselves.
• Involve carers, relatives and other people who work closely with the person concerned.

Are there deprivation of liberty safeguards in Northern Ireland?

The safeguards in Northern Ireland ensures that a person is only deprived of liberty when it is right to do so, and the decision must adhere to the Mental Capacity Act (NI) 2016. If someone wants to deprive a person of liberty, each of the deprivation of liberty safeguards must be in place.

The deprivation of liberty safeguards in Northern Ireland are:

• It must be believed the person lacks the mental capacity to decide about the deprivation of liberty and this must be written down in a statement of incapacity.
• It must be believed and written down that a deprivation of liberty is in the person’s best interests.
• It must be believed a deprivation of liberty will help prevent serious harm to the person or other people.
• A nominated person must be consulted.
• The deprivation of liberty must be authorised.

If the person is in hospital, authorisation, also known as short-term detention, is given by two professionals for 14 days, which can be extended by another 14 days.

Outside of hospital, a Trust Panel authorises the deprivation of liberty. The panel must do so within seven days and can authorise a deprivation of liberty for a maximum of six months, which can be extended by another six months and then 12 months at a time.

Who is the nominated person?

The nominated person, which could be a family member or friend, is someone who can represent and speak up for the person lacking mental capacity.

The nominated person is unable to make decisions but should ensure that the person’s views are taken into account by health professionals. It is also the nominated person’s role to challenge decisions and make applications to the Review Tribunal.

If no one is nominated, a list of people who could act as the nominated person is available.  

The Review Tribunal is an independent panel that reviews deprivations of liberty to ensure they are lawful and that each safeguard has been met.