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Deprivation of Liberty Safeguards (DoLS)

This amendment to the Mental Capacity Act 2005 (introduced by the Mental Health Act 2007) is to provide for procedures to authorise the deprivation of liberty of a person in a hospital or care home who lacks Capacity to consent to being there. These are known as the MCA Deprivation of Liberty Safeguards (MCA DOLS). The MCA principles of supporting a person to make a decision when possible, and acting at all times in the person's best interests and in the least restrictive manner, will apply to all decision-making in operating the procedures.

The MCA DOLS cover:

  • How an application for authorisation should be applied for;
  • How an application for authorisation should be assessed;
  • The requirements that must be fulfilled for an authorisation to be given;
  • How an authorisation should be reviewed;
  • What support and representation must be provided for people who are subject to an authorisation; and
  • How people can challenge authorisations.

Their purpose is to secure independent professional assessment of:

  1. Whether the person concerned lacks the Capacity to make his/her own decision about whether to be accommodated in the hospital or care home for care or treatment; and
  2. Whether it is in his/her best interests to be detained.

Unlawful deprivation of liberty is unacceptable. If an organisation breaches this basic human right, the risks to the organisation could include: a court declaration that the organisation has acted unlawfully and breached the Adult's human rights, a claim for compensation, negative press attention and unwanted attention from commissioners and regulators.

Revised Test for Deprivation of Liberty

The Supreme Court has clarified (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights where the person:

  • Is under continuous supervision and control; and
  • Is not free to leave; and
  • Lacks Capacity to consent to these arrangements.

The Supreme Court has held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This will include a placement in a supported living arrangement in the community. These must be authorised by the Court of Protection.

This ruling will have implications for practice and the DH Advice Note (March 2014) states that: Relevant Staff should:

  • Familiarise themselves with the provisions of the MCA, in particular the five principles and specifically “the least restrictive” principle;
  • When designing and implementing new care and treatment plans for individuals lacking capacity, be alert to any restrictions and restraint which may be of a degree or intensity that mean an individual is being, or is likely to be, deprived of their liberty (following the revised test supplied by the Supreme Court);
  • Where a potential deprivation of liberty is identified, a full exploration of the alternative ways of providing the care and/ or treatment should be undertaken, in order to identify any less restrictive ways of providing that care which will avoid a deprivation of liberty.