When a person’s freedom is restricted to such an extent that they are considered to be deprived of their liberty, this needs to be scrutinised and formally authorised if it is to be lawful.
The Deprivation of Liberty Safeguards (DoLS) is a legal process, introduced for this purpose, via an amendment to the Mental Capacity Act 2005. In some circumstances, DoLS can be used to check whether restrictions placed upon an adult, staying in either a care home or hospital, are necessary, proportionate and in their best interests. The adult must lack the mental capacity to consent to their accommodation, care and treatment as a consequence of a mental disorder. The restrictions must be thought likely to constitute a deprivation of their liberty.
If a person is assessed as being deprived of their liberty this does not imply any criticism of the care they receive. Two independent professionals, often a social worker and a doctor, consider the person’s best interests and complete several DoLS assessments. These are scrutinised by one of our managers before that person’s deprivation of liberty may be formally authorised.
The term deprivation of liberty relates to Article 5 of the Human Rights Act 1998, the right to liberty and security. In March 2014, the Supreme Court published a landmark ruling, with an 'acid test' to help determine when a person is being deprived of their liberty. This asks 2 questions:
- Is the person subject to continuous supervision and control?
- Is the person free to leave? (This applies even if a person does not wish to leave, and/or is physically unable to do so.)
This ruling significantly lowered the legal threshold of what constitutes a deprivation of liberty. As a consequence, there has been a large increase in DoLS referrals from care homes and hospitals. In Derbyshire, DoLS referrals are prioritised, with precedence given to people who are subject to the most significant restrictions. The government has passed legislation to replace DoLS, via the Mental Capacity (Amendment) Act 2019. DoLS is due to be replaced by the Liberty Protection Safeguards (LPS) in October 2020. This new system will have a broadly similar purpose to DoLS.
The relevant person’s representative
A person subject to a deprivation of liberty safeguards authorisation has to have a representative to act on their behalf. This will normally be a family member or carer, but can also be a professional appointed for that purpose.
The representative must be willing and able to maintain regular and frequent contact with the person. They must also be consulted over any care changes and be invited to care reviews. The representative is able to have access to any care records, and is able to request that the deprivation of liberty authorisation is reviewed to ensure that it remains lawful.