In this article
If you no longer have the capacity to make your own decisions and you are a danger to yourself and/or to other people, your liberty may be taken away from you. This is to keep you safe and to ensure that you are properly looked after under supervision such as in a hospital or care home, so it should always be in your best interests.
A deprivation of liberty is not something that is undertaken lightly. It should always be done in the least restrictive way possible and in accordance with the rules set out by the Mental Capacity Act. The key requirement is that it should be in your best interests and implemented in accordance of Deprivation of Liberty Safeguards (DoLS) which are in place to prevent this legislation from becoming abused.
If a hospital or care home needs to deprive someone of their liberty they must follow a strict process of control. The Deprivation of Liberty Safeguards is there to ensure that this step is appropriate for each individual case.
What does DoLS stand for?
Deprivation of Liberty Safeguards is usually referred to as DoLS. These are the safeguards that exist to protect people’s rights if their liberties have to be curtailed in some way. This means that it is important that they have their arrangements assessed on an individual basis to ensure that this decision is in their best interests.
There is a strict legal framework in place to make sure this happens. All applications for obtaining deprivation of liberty need to be assessed on the individual circumstances and applied for.
In England the supervisory body is the local authority if you are in a care home or hospital. In Wales it is the local authority for care homes and the Local Health Board for Hospitals if you are in hospital.
How many Deprivation of Liberty Safeguards are applied for each year?
According to NHS statistics, there has been an annual rise of 15% in applications for DoLS since 2014.
There were 240,455 applications for DoLS received during 2018-19, relating to 200,225 people. This led to completed applications for 216,500 people.
Not all applications were completed. An additional 131,500 DoLS applications were received in the same year but not granted. The main reason given was a change of circumstances.
Each case is assessed on an individual basis following strict criteria. Before the local authority deprives someone of their liberty, a DoLS assessment must be carried out.
A DoLS only lasts for a maximum of 12 months. After that time the patient needs to be reassessed to ensure that the deprivation of liberty is still necessary and that circumstances have not changed.
In some cases a DoLS may be applied for on a temporary basis. This is in cases of urgency such as if someone is admitted into hospital and is showing signs of confusion. The application takes 28 days so there are times when more immediate action is necessary.
What is the deprivation of liberty?
If somebody needs to be supervised and cared for 24/7 and is not free to leave the supervised environment, a deprivation of liberty may be enforced if the person lacks the mental capacity to consent to these arrangements.
This is especially important when it comes to people suffering from mental illness or dementia. An individual may need to be prevented from leaving the premises or from walking about at night for their own good. Nobody wants to remove a person’s freedom but in many cases this is the only realistic way of caring for them.
Agreeing to have your liberty deprived is not the same thing as having this forced upon you. If you have the mental capacity to voluntarily agree to have your liberty withdrawn, the fact that you have made this choice displays that you have the freedom to choose the best treatment and care for yourself.
For example, when we are in hospital we understand that we have to stay in care for the duration of treatment and follow the directions of the hospital professionals.
By contrast, a person who is suffering from mental illness or dementia will not understand that these rules are in place to help them. They lack the mental capacity to agree to a deprivation of liberty so the local authoritative must make this decision for them.
The common scenarios where a deprivation of liberty may be required will be covered below.
Trying to leave the care home or hospital
A person in care may lack the ability or the mobility to be able to leave the care home or hospital but if they did try to leave and were stopped, this is technically a deprivation of liberty. This is because they have not consented to it. Many care homes have a number of patients who fall into this category and in these cases a DoLS should be applied for.
Someone in hospital or a care home may need supervision. This does not mean they necessarily have to be monitored round the clock but it does mean that they need to be supervised at key times such as mealtimes, bedtimes or other times of the day. If there are periods of time that require that staff need to control and watch behaviour, it can count as a deprivation of liberty if the person has not agreed to it.
The person lacks the mental capacity to agree to care
Although in all cases, receiving care and supervision is in the patient’s best interests if he or she has not voluntarily agreed to it, being cared for in itself is a deprivation of liberty.
A deprivation of liberty is only enforced if the patient lacks the mental capacity to make the decision for themselves. There are key factors in agreeing to this.
The key factors in decision-making
- To make that decision a patient needs to understand the living arrangements – such as moving into a care home and why this should be a good option for their care needs.
- The person should also be able to retain the information long enough to make an informed decision around care needs and weigh up the various options available.
- The patient also needs to be able to communicate their decision. This does not have to be made verbally. Some people, such as stroke victims, may have lost the ability to speak but are still mentally capable of making decisions. Other methods may include sign language or simple assent given by squeezing the hand or even by simple muscle movements such as blinking.
Just because someone may struggle or be reluctant to communicate it does not mean that they lack the mental capacity to make decisions.
What is the Deprivation of Liberty Safeguards?
The Humans Right Act of 2014 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 in law’.
This means if someone in hospital or a care home lacks the mental capacity to agree to their care arrangements, there are safeguards in place to protect their interests. The Deprivation of Liberty Safeguards is the procedure prescribed in law when it is necessary for a resident or patient who lacks capacity to consent to their care and treatment to be deprived of their liberty in order to keep them safe from harm.
The DoLS assessment is requested by the care home provider or hospital and this is carried out by two highly trained and qualified people; the best interests assessor and the mental health assessor. These are appointed by the local authority (or Hospital Care Board in Wales) and they must be impartial – meaning they are not involved in any way with the patient.
The best interests assessor may be a social worker, a nurse or a psychologist. The mental health assessor is always a doctor and it is his or her decision as to whether the patient has a mental disorder.
The Deprivation of Liberty Safeguards are part of the Mental Capacity Act 2005 and are a safeguard of basic human rights (Human Rights Act 2014) that say that everyone has a right to liberty.
The Mental Capacity Act prevents blanket decisions being made for people who may lack the ability to consent to care so they must follow strict criteria that show that this step is in the patient’s best interests.
DoLS can only be used if a person is in a care home or hospital. Care homes must apply to the local authority requesting a standard authorisation.
As an added safeguard the individual should have someone with legal powers to protect their interests. This person is usually a family member or friend and is known as the relevant person’s representative. There is also a right to challenge authorisations in the Court of Protection, and access to Independent Mental Capacity Advocates (IMCAs).
In the UK there is legislation to protect the safety and rights of vulnerable adults so that they can be kept safe from harm and live the best life possible. Sometimes this may require DoLS legislation too.
Who can be deprived of their liberty?
People going into care homes, hospital or those in care homes already but with a worsening condition can be deprived of their liberty.
Common cases include:
- People suffering from dementia
- Victims of head injuries
- Stroke victims
- People who suffer from a mental disorder.
What criteria do people have to meet to be deprived of their liberty?
Liberty can be a grey area to define. Many people in hospital or care homes do experience some deprivation of liberty and each case should be carefully studied on its individual circumstances. Likely reasons for requesting a DoLS include:
- If there is frequent use of sedation/medication to control behaviour
- If there is regular use of physical restraint to control behaviour
- If the person concerned objects verbally or physically to these restrictions
- If the restraints are necessary but are met with objections from family and/or friends
- If the person is confined to a particular part of the establishment in which they are being cared for but are prevented from going elsewhere
- The person is already subject to a deprivation of liberty authorisation which is about to expire.
According to a Supreme Court judgment in 2014 it comes down to an “acid test” of two questions. These are:
- Is the person subject to continuous supervision and control?
- Is the person free to leave? The person may not seem to want to leave but if he or she did want to leave, how would those supporting them react if they did?
What is included in the Deprivation of Liberty Safeguards assessment?
There are six parts to the assessment and the best interests assessor and the mental health assessor will work together in order to ascertain whether the individual really needs the deprivation of liberty.
- Age – Is the individual aged over 18? DoLS does not apply to minors and people under 18.
- Mental health – Does the individual have a diagnosed mental health disorder? This can be any type of mental illness or mental disorder as long as it is not associated with current drug or alcohol dependency.
- Mental capacity – Does the person lack the ‘capacity’ to make their own decisions about treatment? Have there been assessments of mental capacity and do these demonstrate that every effort has been made in communicating with the individual in order to make him/her make their own decisions?
- Best interests – Is it in the individual’s best interests to have a deprivation of liberty? Is doing this necessary to keep the person safe from harm? There may be other options that may be more appropriate.
- Eligibility – Is the person eligible for detention under the Mental Health Act 2005, or would they meet the requirements for detention under this Act?
- Objections – Does the authorisation go against any advance decision the person has made in refusing treatment? Are there any reasons why anyone should object to the deprivation of liberty such as someone with the lasting power of attorney.
Typical examples that require DoLS
Mrs H is an 89-year-old widow who lives alone and although she has a history of some vascular dementia, she manages to live independently with some support from her daughters and her neighbours.
Recently Mrs H was found by the police wandering in her night clothes alone and confused and so she was taken to a medical assessment unit. Once there she became aggressive, assaulting the staff and trying to leave the unit. She was diagnosed with a urinary infection and started a course of antibiotics.
The manager requested an emergency DoLS authorisation to treat Mrs H because she did not have the mental capacity to make her own decisions. The request was granted and a standard DoLS applied for.
The best interests assessor ruled that Mrs H was unable to make any decisions regarding her care or living arrangements so a short-term DoLS was granted on the condition that medical and social care assessments should be made and a best interests meeting arranged in the future.
The assessor concluded that once Mrs H had been treated for the infection, her confusion would probably lessen and that she would be able to return home in the future.
Terry suffers from dementia and has been living in a care home for the last two years. Recently his condition has worsened and he has now forgotten that he moved into the care home and he wants to return home to the bungalow which he no longer owns.
Terry keeps trying to leave the care home. He has managed to climb out of the window and has been found wandering by the side of a busy road. He has grown increasingly agitated and spends time by the front door of the home trying to open it – not realising there is a keypad in place.
The care home requests a standard authorisation for DoLS so that they can continue using the keypad and also fit locks on the windows. This is granted as it is in Terry’s best interests that he does not leave the home unless under full supervision.
When can Deprivation of Liberty Safeguards not be used?
DoLS cannot be used for anyone under the age of 18 and authorisation will not be granted unless the six conditions to the assessment are met.
DoLS are not always granted
Mr F is a 91-year-old retired tenant farmer and widower. Used to spending a lot of time alone and out in the countryside, when he moved into the care home he was uncommunicative and reluctant to shower or change his clothes. The staff struggled with helping him to maintain personal hygiene and were also concerned about him leaving the home for walks. Although he was fully mobile and fit for a man of his years they were concerned that he may become lost or confused. They had called the police on a few occasions but he gave them no indication of being lost and he always found his own way back to the home.
The care manager applied for a DoLS but during the assessment the best interests assessor concluded that Mr F did have the capacity to make his own decisions even though his daughter reported that he had always been difficult!
During the assessment Mr F explained that he was not used to using a bathroom – having spent most of his life washing at the sink. He resented the intrusion of being made to explain where he was going and was prepared to take the risk of falling. He did not welcome being criticised about his clothes and hygiene.
The care staff involved Mr F in a new care plan which was less restrictive. The staff accepted that he was free to wash and dress how he pleased and to take solitary walks when he felt like it.
The Deprivation of Liberty Safeguards are important because without these in place, there would be a risk of taking away somebody’s basic human rights and holding them prisoner in a care home or hospital. As with Mr F in the last example, there are times when somebody’s behaviour may be seen as difficult or eccentric but this should never be a reason for taking somebody’s liberty away.
The easiest way to determine whether a DoLS should be applied for is to consider the “acid test” ruling of the Supreme Court which comes down to two straight questions; is the person subject to continuous supervision and control? And is the person free to leave? If there is a straight yes and no answer to these questions, the care home or hospital should apply for a DoLS to ensure that they are not acting unlawfully and that these restrictions on a person’s liberty are justified.