Ensuring Compliance with DoLS Through Training

The Deprivation of Liberty Safeguards (DoLS) procedure is designed to protect a person’s rights if the care or treatment that they receive in a hospital or care home means that they are, or may become, deprived of their liberty, and they lack mental capacity to consent to those arrangements. Under the Mental Capacity Act 2005, mental capacity means being able to understand, weigh up and retain information in relation to a specific decision at the time it needs to be made, and the ability to communicate that decision.

A person must be assessed as lacking mental capacity to make decisions in respect of their health, welfare or finances before a decision can be made on their behalf. Where such care may amount to a deprivation of liberty, the arrangements are independently assessed to ensure they are in the best interests of the individual concerned. A person can only be deprived of their liberty where:

• It is shown to be in their best interests to protect them from harm
• It is a proportionate response to the likelihood and seriousness of that harm
• There is no less restrictive alternative available

Even though deprivations of liberty can occur in any setting, Deprivation of Liberty Safeguards (DoLS) only applies to those that take place in a care home or hospital. For more complex or non-standard settings, the process must be authorised by the Court of Protection. This is why it is important that all health and social care providers and commissioners must have a good understanding of the Mental Capacity Act 2005, and of the Deprivation of Liberty Safeguards (DoLS) standards, statutory framework, and procedures.

This is to ensure that appropriate assessments of capacity are carried out, including all possible attempts to empower people to make relevant decisions for themselves, and to ensure that decisions made for those who lack the required mental capacity are in their best interests, that their human rights are safeguarded and that the care that is provided to them is of the highest quality, even under restricted conditions.

In this article we will explore the legal framework for DoLS and the critical role that training and education plays in ensuring compliance with DoLS standards.

The Importance of Compliance with DoLS

DoLS was introduced in 2009 to prevent breaches of the European Convention on Human Rights  (ECHR), such as in the case of HL v. the United Kingdom. This case is commonly known as the Bournewood case and is concerned with an autistic man (HL) with a learning disability who lacked the capacity to decide whether he should be admitted to hospital for specific treatment. He was admitted on an informal basis under the common law in his best interests, but the decision was challenged by HL’s carers, who asked to take HL home and were refused. In its judgment in 2005, the Court held that this admission constituted a deprivation of HL’s liberty in that:

• The deprivation of liberty had not been in accordance with ‘a procedure prescribed by law’ and was, therefore, in breach of Article 5(1) of the Convention
• There had been a contravention of Article 5(4) of the Convention because HL had no means of applying quickly to a court to see if the deprivation was lawful.

DoLS provides a legal framework to prevent breaches, such as that outlined above, of Article 5 of the European Convention of Human Rights (ECHR) which provides that everyone, of whatever age, has the right to liberty. The ECHR was incorporated into UK national law by the Human Rights Act 1998 (HRA).

Deprivation of Liberty Safeguards (DoLS) is an important part of the Mental Capacity Act 2005. Care homes and hospitals should apply it where a person aged 18 or over does not have the mental capacity to consent to their care arrangements, and they need to be deprived of their liberty. There are two types of DoLS authorisations: urgent and standard.

Urgent DoLS authorisations can last up to 7 days and are initially granted by the hospital or care home where the person is being cared for. These are known as the managing authority (MA). If needed, urgent authorisations can be extended for a further 7 days. This type of authorisation can be used if a person urgently needs to be deprived of their liberty before they have had a full assessment.

In all other circumstances, the managing authority (MA) should request a standard authorisation. In order to deprive someone of their liberty, care homes or hospitals must apply for, and be granted, a DoLS authorisation from a supervisory body. In England, this is always the local authority. The relevant local authority then has 21 days to carry out assessments to ensure that the deprivation of liberty is appropriate. Before giving an authorisation, the supervisory body must be satisfied that the person has a mental disorder such as dementia, learning disabilities, or a severe mental health condition, and lacks capacity to decide about their residence or treatment. Standard authorisations should be reviewed regularly and can last up to 12 months.

Anyone with responsibility for applying the safeguards must have regard to the Deprivation of Liberty Safeguards Code of Practice (the Code), which supplements the Mental Capacity Act 2005 Code of Practice. The Code has statutory force, which means that certain categories of people have a legal duty to have regard to it when working with or caring for adults who may lack capacity to make decisions for themselves. These categories of people include:

• Healthcare staff including doctors, dentists, nurses, therapists, radiologists, paramedics etc.
• Social care staff including social workers, care managers, etc.
• Care workers and assistants in a care home
• Care workers and assistants providing domiciliary care services
• Others who may occasionally be involved in the care of people who lack capacity to make the decision in question, such as ambulance crew, housing workers, police officers etc.
• Attorneys working under a Lasting Power of Attorney (LPA)
• Anyone acting in a professional capacity for, or in relation to, a person who lacks capacity

The Act also applies more generally to everyone who looks after, or cares for, someone who lacks capacity to make particular decisions for themselves. This includes family carers or other carers. Although these carers are not legally required to have regard to the Code of Practice, the guidance given in the Code will help them to understand the Act and apply it.

The Care Quality Commission (CQC) is the regulatory body charged with overseeing health and social care in England, including monitoring the application and use of DoLS by hospitals and care homes. They have acknowledged that whilst the safeguards offered are essential to protect people’s human rights, they remain concerned that the current system is unable to cope with the demand for assessments, stating that “Ongoing problems with the process, including delays in processing applications and the varied knowledge of staff about the safeguards, have left many people who are in vulnerable circumstances without legal protection for extended periods.”

There were an estimated 332,455 applications for DoLS received during 2023-24, which is an increase of 11% similar to the previous year, and there were an estimated 145,945 fully assessed applications for DoLS received during 2023-24. The reported number of cases that were closed without any assessments as at year end was an estimated 162,655 in 2023-24, and 3% of all completed and fully assessed applications were not granted. In 2023-24, only 19% of standard applications were completed within the statutory timeframe of 21 days.

Legal compliance with DoLS procedures is overseen and monitored by a variety of authorities. These bodies work together to ensure that individuals who are deprived of their liberty in care homes or hospitals are protected, and that legal safeguards are in place to prevent unlawful detentions.

The Care Quality Commission (CQC) is the independent regulator of health and social care services in England. It monitors and inspects hospitals and care providers. This includes overseeing and monitoring compliance with DoLS procedures. Non-compliance with DoLS procedures could lead to negative inspection reports, and the CQC has the power to:

• Issue warning notices
• Impose financial penalties
• Downgrade the health or care provider’s quality rating
• Suspend or cancel a health or care provider’s registration
• Prosecute health or care providers for serious breaches of care standards, including those related to DoLS

Local authorities play a central role in overseeing compliance with DoLS procedures by managing authorities (MAs). They act as the supervisory body responsible for assessing and authorising any deprivation of liberty in care homes and hospitals. Their Best Interests Assessors (BIAs) assess whether DoLS is in the best interests of the individual, making recommendations about the length of an authorisation and whether any conditions should be attached to it.

Local authorities should ensure that MAs comply with authorisations and any conditions attached. If a local authority fails to properly assess or authorise deprivations of liberty, it could face legal action itself for negligence or failure to protect the individual’s rights. If a local authority is found to have failed in its duty, it may be required to pay compensation and implement changes to avoid future breaches.

The Office of the Public Guardian (OPG) safeguards individuals who lack capacity by overseeing the use of powers of attorney and ensuring that the rights of those under DoLS are protected. It investigates concerns raised by advocates or representatives regarding a person’s deprivation of liberty.

The Department of Health and Social Care (DHSC) oversees healthcare policy in England and is responsible for implementing and updating DoLS legislation. They work with local authorities, the CQC, and healthcare providers to ensure compliance with the Mental Capacity Act 2005 and DoLS.

Failure to comply with DoLS can lead to prosecution under Section 44 of the Mental Capacity Act. This can result in imprisonment, fines, or both for individuals or the organisation.

In addition, if a person is deprived of their liberty without the setting following the correct legal procedures, they or their representative, for example a family member, may take legal action under the Human Rights Act 1998. Compensation claims can be made; however, actual damages in these circumstances can be very difficult to assess and can only be done on a case-by-case basis. For example, in the case of Essex County Council v CP [2015] EWCOP 1, the court ordered the claimant damages of £60,000 together with the care home fees for the period in question and his legal fees.

Key Elements of DoLS Compliance Training

To ensure that everyone involved in applying for DoLS understands their legal and ethical responsibilities, and that individuals’ rights are protected, it is important that health and care workers participate in comprehensive training and education to safeguard that deprivations of liberty are handled lawfully and appropriately.

Training must cover the legal framework that governs deprivation of liberty, and legal implications of non-compliance with the DoLS process. This should include:

• The central principles of the ECHR Article 5 as described earlier in this article
• The Human Rights Act 1998 (HRA)
• The Mental Capacity Act (MCA) 2005 which provides the primary vehicle through which the deprivation of liberty of those lacking capacity to consent to their care and treatment is authorised
• The Deprivation of Liberty Safeguards Code of Practice (the Code), which supplements the Mental Capacity Act 2005 Code of Practice

Training should also cover how to be able to distinguish between care arrangements that restrict liberty and those that deprive liberty. This is known as the “acid test” and is based upon the decision of the Supreme Court in P v Cheshire West. This case is more commonly known as the “Cheshire West” judgment. The acid test is used to determine whether a person is objectively deprived of their liberty by asking two key questions:

• Is the person subject to continuous supervision and control? (All three aspects are necessary.)
• Is the person free to leave? (The person may not be saying this or acting on it but the issue is about how staff would react if the person did try to leave.)

This means that if a person is subject both to continuous supervision and control and not free to leave they are deprived of their liberty. It is important to fully understand the differences as when a care home or hospital believes a person’s care might deprive them of their liberty, they must apply for a DoLS authorisation from the local authority.

It is important that health and care workers are trained in the process that must be followed when a hospital or a care home identifies the need to deprive an adult in their care of their liberty. This includes gaining authorisation from the supervisory body, in order to enact Deprivation of Liberty Safeguards (DoLS). This is called requesting a standard authorisation. There are six assessments which have to take place before a standard authorisation can be given. These are:

• Age assessment – the person must be over the age of 18 years.
• Mental health assessment – This assessment is made by a mental health assessor. It is a medical diagnosis to see whether the person has a mental disorder.
• Eligibility assessment – There are two parts to this assessment. The first is to see if the authorisation would conflict with an existing requirement of the Mental Health Act 1983. The second part checks whether there should be an application for detention under the Mental Health Act 1983 rather than depriving the person of their liberty using a standard authorisation.
• No refusals assessment – This assessment is undertaken by a Best Interests Assessor (BIA). It looks at whether the authorisation would conflict with an advance decision to refuse treatment or a decision made by an attorney or deputy.
• Best Interests Assessment – In their report to the supervisory body BIAs must include details of everyone they have consulted in carrying out the assessment. Their assessment includes ascertaining:
• Is there a deprivation of liberty?
• Are the restrictions in the person’s best interests?
• What are the conditions of the DoL?
• What is the duration of the DoL?
• Details of the person’s representative.
• Mental capacity assessment – The mental capacity assessment can be undertaken by a BIA, or a mental health assessor. The assessment is to establish whether the person has capacity to decide whether or not they should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment.

Depriving someone who lacks the capacity to consent to the arrangements made for their care or treatment of their liberty is a serious matter, and the decision to do so should not be taken lightly. Health and care workers should fully understand the criteria set out in the DoLS code that make it clear that a person may only be deprived of their liberty:

• In their own best interests to protect them from harm
• If it is a proportionate response to the likelihood and seriousness of the harm
• If there is no less restrictive alternative

Health and care workers should also be able to recognise the distinct roles and responsibilities of all those involved in the DoLS process, which have been detailed earlier in this article. To summarise:

• Managing authorities are hospitals and care homes and their workers and are responsible for submitting DoLS authorisations and ensuring compliance
• Supervisory bodies are usually local authorities; they assess and authorise DoLS
• Best Interests Assessors are employed by the local authority and their role is in safeguarding individuals
• Regulatory bodies such as the CQC oversee and monitor compliance with DoLS

An important aspect of DoLS training is to understand how CQC inspections assess compliance with the Mental Capacity Act and DoLS and the importance of maintaining high standards of care. Training should include modules on auditing and monitoring DoLS compliance within the setting. This will help ensure that health and social care professionals not only understand the legal requirements but also have and know how to use the tools to track compliance and identify areas for improvement.

Practical Aspects of DoLS Training and Education

Applying DoLS can be a complex and sensitive area, which is why training that includes the use of real-life case studies, role-playing and scenarios is an effective training method to enable health and care workers to apply DoLS principles to situations that they are likely to encounter in their roles in the safety of the training room and to gain confidence from experiencing a variety of situations. Health and care workers gain a deeper understanding of how theoretical concepts, such as the “acid test” for deprivation of liberty, are applied in practice.

They are also able to explore how to handle these sensitive issues while adhering to their statutory responsibilities under legislation governing DoLS. Also, by working through scenarios where legal boundaries might be compromised or crossed, they can become more aware of the legal consequences of non-compliance with DoLS, and recognise that following the correct procedures and ensuring that any deprivation of liberty is lawful and justified is crucial.

Practical training can also expose participants to the different roles in the DoLS process and can provide an opportunity for participants to role-play roles other than their own to gain additional perspectives. This can help to enhance communication and collaboration when back in the workplace. It can also introduce to participants a wide diversity of scenario subjects, some of which they may not have encountered in their roles to date. This equips participants to consider the various needs and preferences of a culturally diverse population when making DoLS applications.

Record keeping and documentation is an important aspect of DoLS, so utilising real documentation in role plays can familiarise and prepare participants with the procedures required for DoLS compliance.

Engaging, practical learning is known to improve knowledge retention and helps to increase understanding. It also highlights the importance of complex legal and ethical concepts and seeing them put into practice, albeit in simulations.

Continuous Education and Updates

As with most laws, regulations and codes of practice, the DoLS legal framework and accompanying procedural guidelines can be subject to amendments and changes from time to time. In particular, in the case of DoLS, the Mental Capacity (Amendment) Act 2019 was due to come into force, but the COVID pandemic and a change of government has at present delayed its implementation. This Act contains the Liberty Protection Safeguards (LPS) intended to be introduced by the government through the Mental Capacity (Amendment) Act 2019 with a view to replacing the Deprivation of Liberty Safeguards (DoLS).

Similar to DoLS, LPS has been designed to protect the rights of people who use health and care services not to be deprived of their liberty without a proper legal process and rights to challenge, but extending their protection to young people aged 16 and 17 years. LPS also covers the extension of the scheme to community settings. These include supported living or the person’s own home, settings where previously an application would have been made to the Court of Protection. The intention was for LPS authorisations to run alongside existing DoLS ones for the first year, until these naturally end.

Being aware of the probability of changes to DoLS and possible other amendment and changes to legislation and guidelines, health and care workers should engage in regular continuing professional development (CPD) to keep themselves up to date and to keep their skills and knowledge compliant with the latest advice and practices, CPD is not just formal courses, a CPD activity is any activity from which you learn and develop including activities such as:

• Self-directed learning, e.g. reading articles or books or carrying out research
• Refresher courses – it is recommended that these should be attended annually to keep skills and knowledge fresh
• Professional activity, e.g. being a member of a professional body, attending conferences etc. or networking
• E-learning and digital tools, e.g. online learning courses, podcasts etc.
• Courses accredited by a relevant professional body

CPD is the way in which professionals such as health and care workers continue to learn and develop throughout their careers so that they keep their skills and knowledge up to date and are able to practise safely and effectively.

Consequences of Non-Compliance

Earlier in this article we have described a range of the consequences that health and care providers and, if applicable, staff members, may have imposed upon them should they not comply with the statutory legislation and guidelines of DoLS. We also stated above that the use of case studies helps to demonstrate a deeper understanding of theoretical concepts such as legislation. Below are some real-life examples of legal and financial ramifications of failing to comply with DoLS, which should act as a deterrent to non-compliance.

The case of AJ

AJ, a woman with significant mental health issues and learning disabilities, was placed in a residential care home where she was not allowed to leave and was under constant supervision. However, the care home failed to obtain a DoLS authorisation for over a year, despite AJ being effectively deprived of her liberty. The care home not only failed to apply for DoLS authorisation, but they also failed to properly involve AJ’s family in decisions regarding her care, which led to dissatisfaction and complaints and AJ’s care arrangements not being reviewed regularly to assess whether they were still in her best interests or whether the restrictions could be reduced.

The Care Quality Commission (CQC) launched an investigation into the care home’s practices, which resulted in a negative inspection report and enforcement actions, including the requirement for urgent improvements in DoLS compliance and staff training.

AJ’s case was taken to the Court of Protection, which found that the care home had unlawfully deprived AJ of her liberty by failing to apply for a DoLS authorisation. The court ordered that AJ be moved to a less restrictive setting and that the care home pay compensation for the unlawful deprivation.

The case of Steven Neary (2010)

Steven initially went to a respite facility a little earlier than planned because his father was unwell and exhausted from caring for Steven over the Christmas period. His father wanted him to stay for a couple of days, but agreed to an extension of a couple of weeks; however, he expected that Steven would then return home.

In fact, the local authority started a process of assessment of Steven’s needs and decided that he needed to stay in the unit for longer, apparently primarily based on concern as to whether Steven’s needs could be met at home even with support due to his behaviour, and on the fact that he had gained a considerable amount of weight while in the care of his father, most likely due to the use of food as a mechanism for managing Steven’s behaviour.

The evidence before the court was that the local authority did not properly discuss its concerns or its plans for Steven with his father, and that Steven himself expressed a consistent desire to return home. No DoLS authorisations were granted until some four months after Steven had been kept at the respite unit. The DoLS process was triggered because Steven wandered out of the unit and was involved in an incident with a member of the public.

The first DoLS Best Interests Assessment determined that it was in Steven’s best interests to remain at the respite unit but did not look in any detail at the possibility of a return home, nor did it suggest as a condition of the authorisation that an application be made to the Court of Protection. The court found that Hillingdon had breached Steven Neary’s rights under Article 8 ECHR by preventing him from living with his father, and had breached his rights under Article 5(1) ECHR by unlawfully depriving him of his liberty, even during periods where there was a standard authorisation in place under Schedule A1.

Hillingdon further breached Steven Neary’s rights under Article 5(4) by failing to bring the dispute to court, failing to appoint an IMCA at a suitable juncture, and failing to conduct an effective review of the DoLS Best Interests Assessments under Part 8 of Schedule A1.

Steven Neary and his father were awarded £35,000 in compensation for the unlawful deprivation of liberty. The case received widespread media coverage, leading to significant reputational damage for the local authority. It also brought national attention to the issue of DoLS compliance and the importance of properly safeguarding vulnerable individuals.

Best Practices for Ensuring DoLS Compliance

Deprivation of liberty safeguards best practice starts with having clear, robust, detailed, up-to-date and effective organisational policies and procedures. These provide all employees with an understanding of expected behaviours and performance standards whilst providing rules for the decision-making process across an organisation when securing a balance between protecting individuals’ rights and ensuring their safety and well-being. They also help employees to comply with legislation and statutory regulations and should reflect best practice.

Many organisations appoint DoLS Leads alongside or incorporated into the Designated Safeguarding Lead role. The role of a DoLS Lead is likely to include responsibilities such as advising, supporting and reporting to the senior/leadership team on any aspects of DoLS. They help to champion and promote the necessity for quality, care and timeliness in the DoLS application process, putting the individual’s best interests at the heart of the practice.

They also help to ensure compliance with DoLS legislation and statutory regulations by coordinating training and education for staff, monitoring and reviewing practice, and keeping themselves and others up to date with any amendments and changes. They can provide notifications of training events, or a newsletter with examples of good practice. By continually reviewing care arrangements and DoLS applications, they can help to minimise the risk of unlawful deprivation of liberty.

Best practice also includes working collaboratively with the family of the person subject to a DoL and with other bodies involved in the DoLS process such as the supervisory body and the regulatory body. As we have seen in our featured case studies, non-compliance often includes lack of family involvement when decisions are being taken.

The Future of DoLS Training

With the impending transition from DoLS to Liberty Protection Safeguards (LPS), health and social care providers should be proactively training their staff in preparation for the legislative and regulatory changes. This will include settings that to date have not been operating DoLS, as the new process extends to more settings, including domestic environments, and will apply to individuals aged 16 and over, whereas DoLS apply to those over 18 years. There will also be changes to the process of authorising deprivations of liberty which workers need to be made aware of.

We have already highlighted the benefits of practical training in enabling participants to practise their gained knowledge and skills in a safe training environment before implementing them into their workplace practice. Advances in training technologies such as virtual reality simulations can provide valuable immersive experiences, allowing participants to practise a more hands-on approach to DoLS and/or LPS assessments, or to deal with challenging situations in a safe and controlled training environment.

Anyone working in the health and social care environment will acknowledge that finding time for training in such a busy environment can be challenging. So the utilisation of a variety of training methods made possible by technology such as virtual classrooms, podcasts, webinars, e-learning and online interactive training modules that simulate real-life scenarios all make training more accessible.

Artificial intelligence (AI) is transforming health and social care where documentation and compliance play pivotal roles in ensuring the delivery of quality care and maintaining legislative and regulatory standards. Accurate documentation is essential for effective patient care, while compliance with regulations such as DoLS ensures legal adherence. Traditional methods of managing these tasks are often labour-intensive and can be prone to errors. AI-powered tools are addressing these challenges by automating documentation processes and can be particularly helpful in tracking DoLS compliance.

Conclusion

In this article we have explored the legal framework for DoLS and the critical role that training and education plays in ensuring compliance with DoLS standards.

Comprehensive education and training for all levels of staff, which includes the legal framework, regulations and best practices for DoLS, helps to protect all those who may be subject to DoLS ensuring that their rights are protected and that any application for a DoL is in their best interests. It also helps to protect the setting and its staff from the risk of negative inspection reports from the CQC, or worse from the risk of legal action and potential fines, reputational damage or even closure.

Health and social care settings that are committed to improving both DoLS compliance and the quality of care provided to vulnerable individuals should regularly evaluate and review their DoLS education and training provision to assess its validity, currency, and any areas for improvement.