The Deprivation of Liberty Safeguards (DoLS) give legal protection to vulnerable people in care homes or hospitals, who cannot consent to the care and treatment they need, because they lack capacity. (We explain what ‘lacks capacity’ means above).
Most people who need the protection of the DoLS have moderate to severe learning disabilities, dementia, or a neurological condition like a brain injury.
The DoLS were introduced after the legal judgment from the European Court of Human Rights about an autistic man with a learning disability who lacked the capacity to decide whether he should be admitted to hospital for treatment. He was admitted to hospital on an informal basis, but was then prevented from leaving the hospital with his carers. His carers challenged the hospital and took the case to the Court, who found that he had been deprived of his liberty unlawfully, which was a breach of his human rights.
In March 2014, the Supreme Court of the United Kingdom decided that when an individual who lacks capacity is under the continuous or complete supervision and control of others, and they are not free to leave their care home or hospital, they’re being deprived of their liberty. This is referred to as the ‘acid test’.
In most cases, care and treatment is necessary and is being delivered in the person’s ‘best interests’ under the Mental Capacity Act 2005. A DoLS assessment, completed by health and social care professionals, will decide whether the restrictions in the person’s care plan are necessary to protect them from harm. Professionals must be satisfied that there is no suitable alternative care plan which could be used, which would not deprive the person of their liberty.
The Managing Authority (the hospital or care home where the person is staying) must apply to its Supervisory Body (the council responsible for the hospital or care home) for authorisation to begin the care plan.
The Supervisory Body must conduct six assessments to confirm that the deprivation of liberty is lawful and appropriate. A doctor and a social worker, nurse or occupational therapist who have undergone further training to become a Best Interests Assessor (BIA) in the MCA/DoLS will complete the assessments. The BIA will also look for, and may recommend, less restrictive care options if necessary, for example, returning home with a package of care. Authorisation to make the deprivation of liberty lawful must then be sought from the council or in some cases the Court of Protection to ensure the person’s human rights.
The Supervisory Body will decide how long the authorisation lasts, based on the proposed care plan. This should be for as short a time as possible, and for no longer than 12 months.
If at any point the person no longer needs to be deprived of their liberty or their circumstances change, then the authorisation should be reviewed and, where appropriate, ended.