The Deprivation of Liberty Safeguards (DoLS) were introduced to protect and provide safeguards for people who lack capacity to consent to treatment or care in a hospital or care home. They apply where such treatment can only be provided in their best interests in circumstances which amount to a deprivation of liberty and where detention under the Mental Health Act 1983 is not appropriate for the person. The DoLS therefore do not apply to people detained under the Mental Health Act.
The DoLS were introduced to prevent breaches of the European Convention on Human Rights such as the one identified in the ‘Bournewood’ case (HL v the United Kingdom (2004) Application No: 00045508/99). This concerned 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 under the common law, based on his best interests. However, his carers challenged this decision and the ECtHR held that his admission had constituted a deprivation of HL’s liberty. It also held (1) that this 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 ECHR and (2) that there had been a contravention of Article 5(4) of the ECHR because HL had no means of applying quickly to a court to see if the deprivation of liberty was lawful.
Following this case, the Mental Capacity Act 2005 (‘the Act’) was amended to prevent further similar breaches of the ECHR and to protect those who need to be accommodated under care and treatment regimes which may have the effect of depriving them of their liberty, but who lack the capacity to consent to treatment or care. Sections 4A and 4B, together with Schedule A1 of the Act define the limited circumstances under which deprivation of liberty for a person lacking capacity can be authorised. The Code of Practice on DoLS supplements these provisions.
Key Principles of the DoLS
Key principles include:
- Every effort should be made to prevent the deprivation of liberty. If it cannot be avoided then it should be for as short a period of time as possible.
- The ‘managing authority’ (i.e. the relevant hospital or care home) must seek authorisation from a ‘supervisory body’ in order to be able to lawfully deprive someone of their liberty.
- From 1 April 2013 the responsibilities currently held by PCTs to act as Supervisory Bodies authorising deprivations of liberty in hospitals will pass to local authorities. Local authorities will continue to act as the Supervisory Bodies in respect of decisions relating to care homes.
- Before authorising the deprivation of someone’s liberty, the Supervisory Body must be satisfied that the person has a mental disorder and lacks capacity to decide about their residence or treatment.
- It is not necessary to apply for a deprivation of liberty authorisation for everyone who is in a hospital or a care home simply because the patient or resident lacks capacity to decide whether or not they should be there. The relevant issue is whether there are, or will be, any restrictions, that are needed to provide ongoing care or treatment, which amount to a deprivation of liberty.
- In urgent cases it is possible for a managing authority to itself grant an urgent authorisation for deprivation of liberty. However it must also notify the supervisory body and make detailed written records, covering not only the name of the relevant person and where they are staying but also the reason for and the duration of the authorisation. The authorisation cannot exceed 7 days without a separate request for an extension from the Supervisory Body.
What amounts to a deprivation of liberty?
Chapter 2 of the Code of Practice gives a non-exhaustive list of factors pointing towards a deprivation of liberty at paragraph 2.5.
- Restraint is used, including sedation to admit a person to an institution where that person is resisting admission
- Staff exercise complete and effective control over the care and movement of a person for significant periods
- Staff exercise control over assessments, treatments, contacts and residence
- A decision has been taken by the institution that the person would not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate
- A request by carers for a person to be discharged to their care is refused
- The person is unable to maintain social contacts because risk of restrictions placed on their access to other people
- The person loses autonomy because they are under continuous supervision and control
However, the Code of Practice makes it clear that this is an uncertain issue and that other factors may arise in future cases. The list therefore only provides examples of factors which would point towards a deprivation of liberty and should not be taken to include all circumstances which may amount to a deprivation of liberty. Each case will turn on its own facts.
A recent Court of Appeal case suggested that what amounts to deprivation of liberty will depend on the particular individual and what is the usual level of restriction that could be expected to apply to a person with similar conditions. However, the Supreme Court will hear an appeal on that case in the autumn which should hopefully bring more clarity to what amounts to a deprivation of liberty. Meanwhile, if you are in any doubt about whether something amounts to a deprivation of liberty or not, it is safer to apply to the local authority for authorisation rather than be criticised later for failing to do so. If you have any concerns or face a particularly complex or contested case, seek legal advice at the earliest opportunity.
