Deprivation of Liberty Safeguards (DoLS)
The Deprivation of Liberty Safeguards (DoLS) is the procedure prescribed in law when it is necessary to deprive someone who lacks capacity to consent to their care and treatment of their freedom, to keep them safe from harm.
Article 5 of the Human Rights Act 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'.
A Supreme Court judgement in March 2014 referred to the 'acid test' to see whether a person is being deprived of their liberty, which consisted of two questions:
- is the person subject to 'continuous supervision and control?' and
- is the person 'free to leave?' (permanently) - the focus is not on whether a person seems to want to leave or even whether they are physically capable of leaving, but on how those who support them would react if they did want / try to leave
The DoLS serves two purposes:
- to protect people who lack mental capacity by granting care homes / hospitals a legal authority to keep them there while receiving care or treatment, so that they may not leave the setting and become lost or suffer accident or self-neglect
- to protect the rights of people in care homes and hospitals against 'arbitrary' detention and give them a mechanism to appeal if they object to their stay
The DoLS regime only applies to care facilities such as hospitals, care homes and hospices. It cannot be used in a person's own home or in a supported living setting. To deprive a person of their liberty in those settings may be possible but would involve application to court rather than the DoLS.
Making a DoLS application
A DoLS application should be made by a care home or hospital that believes it is depriving a person of their liberty. An application cannot be made by members of the public.
If a person has mental capacity to decide their own care or treatment needs, they will not be eligible for DoLS. If the mental health assessor finds that the person has mental capacity, then the DoLS authorisation will not be granted.
If someone is already detained in hospital under The Mental Health Act, they will not be eligible for DoLS. However, a person may still be eligible for DoLS if they are living in the community under certain restrictions of the mental health act.
A DoLS authorisation is not transferable. If a person subject to DoLS in one care setting moves to a different setting, then the DoLS does not go with them. If the new setting needed DoLS then this would mean a new application and assessment.
DoLS assessments
When a DoLS application is made, we will instruct two assessors.
The mental health assessor is usually a psychiatrist. Their role is to assess whether the person has a cognitive impairment (for example Dementia, Delirium, or a Learning Disability) and if so, whether it prevents the person making a decision about the need for them to be in the care home or hospital. For the person to be eligible for DoLS, the mental health assessor must confirm that they lack capacity to make that specific decision. The mental health assessor will be independent, so will not be the person's usual treating psychiatrist.
The best interest assessor will be employed or commissioned by us. Their role is to assess whether it is in the person's best interests to be deprived of their liberty in the care home or hospital, and whether this would be a reasonable and proportionate response to the risk of harm that might otherwise occur to the person. The best interest assessor recommends whether we should grant the requested DoLS authorisation and, if so, for how long.
How long a DoLS authorisation lasts
A DoLS authorisation can last for anything up to one year. The care home or hospital would then need to reapply before it ran out. However, the authorisation might be much shorter. For example, if someone is in hospital for medical treatment or in a care home short-term, the DoLS could be for only a few weeks. The best interest assessor recommends how long the DoLS should be granted for.
The person is not free to leave the care setting independently while the DoLS is in place. However, if they transfer to a different care setting or if they can be supported to return to their own home or live with family, then the DoLS would end when they leave the care setting. The person does not have to stay in the setting for the duration of the DoLS authorisation.
Whether a person is asking or trying to leave the care setting (or even whether they are physically capable of leaving the care setting) is irrelevant to their eligibility for DoLS. The relevant question is not whether the person wants to leave but whether they would be free to leave if they wanted to.
If the person objects to their stay in care
If the person lacks capacity and objects to being in the care home or hospital, then the best interest assessor can still recommend DoLS authorisation, and this can still be granted. However, the person has a right of 'objection'. If deprived of their liberty against their wishes, they can access a right of appeal to the court of protection. What constitutes an 'objection' may vary. If the person is frequently asking to go home or attempting to leave the care setting, they may object to their stay and their right of appeal may have to be exercised.
Refusing a DoLS authorisation for a family member
A DoLS authorisation can be refused by someone who holds lasting power of attorney for health and welfare if they disagree with the proposed care arrangements. A DoLS also cannot be granted if the person made an 'advance decision' when they had capacity that would conflict with the proposed DoLS authorisation.
Relevant Person's Representative (RPR)
Whenever a DoLS authorisation is granted, the person must be appointed a Relevant Person's Representative (RPR). This must be someone unpaid like a family member, partner, or friend. If there is no one willing and appropriate to appoint, then we will appoint an independent advocate to be the RPR. The best interest assessor recommends who should be the RPR, unless there is a lasting power of attorney for health and welfare in place. In that case the attorney may wish to select themselves or another eligible person as RPR, endorsed by the best interest assessor.
The RPR must do three things:
- maintain regular contact with the person subject to DoLS
- act in their best interests
- support the person to exercise their rights, including potentially a right of appeal if the person objects to being deprived of their liberty (and regardless of the person's best interests)
If you are a family member, the care home or hospital should have made you aware that they are making a DoLS application. If the best interest assessor is aware of any family members or friends then they should consult them as part of the DoLS assessment process. They should consider whether, if DoLS is granted, any family member or friend is willing and appropriate to be RPR.
For more information read the guidance outlined in the DoLS Code of Practice (opens new window)
View the easy read guide - Deprivation of Liberty Safeguards and you (PDF, 925 KB)(opens new window)
Forms
DoLS form 2 - Request for a further standard authorisation (Word doc, 131 KB)(opens new window)
Please return completed forms to dolsgateshead@gateshead.gov.uk.
View guidance to the forms on the Gov.uk website (opens new window)
Links
Promoting less restrictive practice: reducing restrictions tool (opens new window)
Contact us
The Mental Capacity Act and Deprivation of Liberty Safeguards Team are available to discuss any queries regarding potential deprivation of liberty issues.
0191 433 2362