The Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (Dols) are designed to uphold the interests of people who lack the capacity to consent to the care and treatment they need.  They apply in England and Wales.

Who do the safeguards apply to?

The Dols apply to people aged over 18 who:-

• Have a disorder or disability of mind;
• Lack the capacity to give consent to the arrangements made for their care or treatment;
• For whom such care is deemed to be a necessary and proportionate response in their best interests to protect them from harm.

How do they work?

Whenever a care home or hospital believes someone is likely to be deprived of their liberty in their care, they must apply for an authorisation to detain them. In this context, care homes or hospitals are known as managing authorities and they must apply to a supervisory body: a local authority in the case of a care home or a primary care trust or health board in the case of a hospital.

Urgent and standard authorisation

If someone needs to be treated or cared for in an emergency, the care home or hospital can issue an urgent authorisation, giving their reasons in writing for why a deprivation is necessary. This expires after seven days after which a standard authorisation, granted by the supervisory body is required.

The six assessments

The supervisory body must carry out six assessments to determine eligibility for the Deprivation of Liberty Safeguards:

• An age assessment to determine whether the person is over 18.
• A no refusals assessment, to determine that the authorisation does not conflict with a valid advance decision made by the service user before they lost capacity; or that it does not conflict with a decision made on the service user's behalf, either by a person given lasting power of attorney or by a deputy appointed by the Court of Protection.
• A mental capacity assessment to determine that the person lacks the capacity to decide on their care or treatment.
• A mental health assessment to determine that the person is suffering from a mental disorder.
• An eligibility assessment to determine that the person is not subject to treatment under Mental Health Act 1983, in which case they will be ineligible.
• A best interests assessment to ensure that the deprivation is in the best interests of the person concerned, necessary in order to prevent harm to them and a proportionate response to the likelihood of them suffering harm.

Outcomes

If any of the assessments conclude that the person does not meet the criteria, the supervisory body must turn down the application.  Steps must then be taken to arrange alternative care or treatment for the individual.

If all of the assessments are passed, then the application is granted. An authorisation lasts a maximum of a year and is no longer than the time recommended by the best interests assessor.

Social workers' role

Social workers are often appointed to carry out best interests assessments, so long as they are not involved in the care planning process. The best interests assessor must consult with any deputy or attorney acting on the person's behalf, anyone named by the service user as someone to be consulted and anyone in engaged in caring for them or interested in their welfare.

If the best interests assessor concludes that a deprivation is the right thing to do, they must recommend a person to be the relevant person's representative to speak up for them, which should often be a family member. If no family member is available, the supervisory body will appoint a representative. The representative's role is to support the service user in all aspects of the authorisation, request a review if necessary or apply for the case to be considered by the Court of Protection.

Independent Mental Capacity Advocates

Anyone who does not have family or friends to speak up for them will have an Independent Mental Capacity Advocate appointed to act on their behalf.

History: The Bournewood case

The Deprivation of Liberty Safeguards were inserted in the Mental Capacity Act 2005 through the Mental Health Act 2007, and came into force in April 2009.

They were the government's response to a 2004 European Court of Human Rights ruling, which found that a man with severe autism, HL, had been deprived of his right to liberty when he was admitted to Bournewood psychiatric hospital for four months in Surrey in July 1997 after becoming distressed at a day centre.

HL had not been detained under the Mental Health Act 1983, instead he was accommodated in his own “best interests” under the common law doctrine of ‘necessity’. The European court held that this doctrine was too arbitrary and lacked the safeguards provided to those sectioned under the Mental Health Act.

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