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Deprivation of Liberty Safeguards (DoLS) is a key part of UK legislation that is designed to protect vulnerable people in care settings. Certain adults who are in a care home or hospital may have DoLS applied to them if they lack the mental capacity to give consent to their care arrangements and they need to be deprived of their liberty.
Simply put, DoLS allows for controls to be put in place to prevent an individual from leaving their care placement of their own free will, whilst still maintaining their dignity and rights under law.
An application to deprive someone of their liberty has to follow strict criteria, including a six-part assessment and the right to appeal. These steps aim to safeguard vulnerable people from being deprived of their liberty unnecessarily and remind all involved that this procedure should only be used as a last resort.
In the year 2022/23 the number of applications to deprive a person of their liberty increased to over 300,000 which was an 11% increase from the previous year.
In this article we will look further into DoLS and explain who these safeguards may apply to and why it is important to have such protections in place.
What are Deprivation of Liberty Safeguards?
The Deprivation of Liberty Safeguards is an amendment to the Mental Capacity Act 2005. It is only applicable in England and Wales. The purpose of DoLS is to ensure that individuals who lack capacity for decision-making (e.g. they have dementia) are not unlawfully deprived of their liberty.
- DoLS applies to hospital and care home settings
- It is designed to protect the rights of individuals whilst ensuring that they receive necessary care and treatment
- Arrangements are assessed to check that they are both necessary and in the best interests of the person
- Representation and the right to challenge a decision are other safeguards within the DoLS framework
Article 5 of the Human Rights Act 1998 protects our right to liberty and security and DoLS is the procedure used when these rights have to be overridden in order to provide essential care. After a case where the European Court of Human Rights (ECHR) ruled that a person’s human rights had been breached because staff at a hospital made a decision to keep him there, against the wishes of the family, the Mental Capacity Act was amended to prevent similar breaches. To achieve this, the following safeguards were developed:
- Organisations who wish to deprive someone of their liberty must seek authorisation to do so
- When an authorisation is granted, it should be regularly reviewed
- The person who is being deprived of their liberty should be appointed a representative
- The person who is being deprived of their liberty is able to challenge the authorisation
A DoLS authorisation should be made for as shorter time as possible and only for up to 12 months. Each authorisation comes with an end date that should be clearly communicated to all involved.
While a person is being cared for under DoLS, both the facility and local authority should perform regular checks:
- To see if an authorisation is still needed
- To remove an authorisation that is no longer required
- To provide the relevant person’s representative with key information about their care and treatment
Patients are entitled to be informed of their rights, have their rights upheld and be given dignified care regardless of whether a deprivation of liberty authorisation is in place.
Who do DoLS Apply to?
A person may be deemed to lack mental capacity to consent to their treatment and may need to be deprived of their liberty to be kept in a hospital or care home if they have some form of mental impairment, for example they have dementia or a serious learning disability.
For a person to be considered to be deprived of their liberty, the following questions should be asked to see if they relate to their situation:
- Are they subject to continuous supervision and/or control?
- Is the person unable to leave (permanently)?
If the answer to both of the above questions is yes, it is likely that someone is being deprived of their liberty and an application to the local authority must be made and the correct procedure followed in order to ensure you are acting lawfully and complying with legislation.
However, if some of the following apply, it is also advised to request an assessment for deprivation of liberty to be authorised:
- An individual is regularly sedated or medicated to control their behaviour
- Physical restraint is regularly used to keep them under control
- Verbal and/or physical objections are made to the restraint procedures (by the patient or their family/loved ones)
- The individual is confined to a specific part of the facility in which they are cared for
- Challenges have been raised by a solicitor, the Ombudsman or Court of Protection
- A current deprivation of liberty authorisation is about to expire
The Process of Applying DoLS
When staff at a hospital or care home (known as the managing authority) decide that a deprivation of liberty needs to happen they have to make an application to the local authority (known as the supervisory body). The managing authority has to fill out a form requesting standard authorisation. The supervisory body has 21 days to make a decision on the matter.
An assessment has to be done to ensure that the patient concerned fits the criteria needed for the deprivation of liberty to be authorised.
There are six parts to the assessment:
- Age – the individual must be 18 or over
- Mental health – the individual must have a mental disorder (including dementia)
- Mental capacity – the individual must lack the capacity to make decisions and judgements about their own care and treatment
- Best interests – deprivation of liberty can only take place if it is in the best interests of the individual, is necessary to keep them safe and is proportionate to the likelihood of them coming to harm
- Eligibility – an individual must be eligible under DoLS, and detention under the Mental Health Act 1983 must not apply to their situation (there is a different procedure if the Mental Health Act applies)
- No refusals – the authorisation should not contradict previous decisions made around refusing treatment (including those made by someone with lasting power of attorney)
The assessment is done by professionals who are appointed by the local authority. They must be experienced and competent with a good understanding of the Mental Capacity Act and the DoLS framework. They will usually meet the individual face to face and look at their health, medical and care records.
The DoLS procedure requires two assessors to be responsible for assessing an individual:
- One should be a mental health assessor (MHA) – a doctor with the relevant skills, experience and training
- One should be a best interests assessor (BIA) – this could be an approved mental health professional (AMHP), social worker, occupational therapist, nurse or chartered psychologist
After a deprivation has been granted, safeguards remain in place to ensure the safety and dignity of the patient. One of these safeguards is appointing a representative to act on behalf of the individual. The representative may be a family member, friend or other carer.
The Role of Family and Legal Guardians
Family and legal guardians play an important role in ensuring the safety and rights of their loved one are respected and upheld.
- A ‘relevant person’s representative’ is a representative (family member, friend, carer etc) who is appointed to act on the person who is being cared for under DoLS
- The local authority will usually engage with the representative during the ‘best interests’ part of the assessment
- If a suitable relative or loved one is not available to act as a representative, the LA has to appoint a paid representative, e.g. an advocate, who must be trained and experienced to act on behalf of the patient
Representatives have various roles and responsibilities, for example:
- To stay in contact with the person who is being cared for under DoLS
- Checking whether any care arrangements have changed
- Being given access to documents about decisions
- Requesting a review of assessment decisions
The representative can also launch an appeal against the DoLS authorisation and must act in line with the wishes of the person they are representing. The Court of Protection is the specialist court that deals with cases of people who lack capacity to make specific decisions.
The managing authority and supervisory body should work collaboratively to ensure that the individual under DoLS and their representative fully understand the DoLS process and know their rights.
Sometimes, a representative may require additional support with their role which they can get from an independent mental capacity advocate (IMCA). NHS organisations should be able to signpost people to find an advocate or IMCA.
The Importance of DoLS in Safeguarding
DoLS is a crucial part of safeguarding vulnerable adults to ensure that they are not subject to unnecessary restraints and that everyone is acting with their best interests in mind.
The correct application and implementation of DoLS ensures compliance with legal requirements, good continuity of care and allows for better relationships between patients, caregivers and their loved ones.
By acting in line with legal frameworks and following the correct policies and procedures, organisations can also safeguard themselves against action being brought against them. It is also vital that clear and accurate records are kept to prove that the correct procedures were followed within the correct timeframes.
Recent Developments in Liberty Protection Safeguards (LPS)
In response to limitations that have been identified in the current DoLS system, a new set of safeguards has been developed as part of the Mental Capacity Amendment Act (2019) called the Liberty Protection Safeguards (LPS). The new system is designed to be simpler, more streamlined and more patient centred.
Some of the key changes when transitioning from DoLS to LPS include:
- The new scheme covers individuals from the age of 16 (was previously 18)
- It extends to settings other than adult social care homes and hospitals (e.g. supported accommodation)
- LPS authorisation can be applied across multiple settings without having to reapply each time
- The organisations that have the ability to authorise deprivation of liberty will be expanded (previously only local authorities and the court could make these decisions) to include NHS trusts and integrated care boards
The new LPS framework was due to be implanted in October 2020 but was delayed due to the Covid-19 pandemic. Until LPS is fully rolled out the current DoLS process remains in place.
Conclusion
Deprivation of Liberty Safeguards is essential to ensure that a person’s human rights are respected if they have to be deprived of their liberty whilst receiving essential treatment in a hospital or a care home that they lack the mental capacity to consent to.
Having an understanding of DoLS is crucial to ensuring that the rights of vulnerable people are upheld. When a request for a deprivation of liberty authorisation is made, the Care Quality Commission (CQC) has to been informed about the decision once it has been reached.
If you work in the healthcare or adult social care sectors or have a loved one who is at risk of being subject to care under DoLS, you should also keep an eye out for the implementation of the new LPS system as this will alter and extend some of the principles of the existing framework.
Further resources can be found at the Mental Capacity Act Directory.