Updated 2 October 2015
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, where these arrangements amount to a deprivation of liberty.
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;
- Their care arrangements amount to a deprivation of liberty;
- 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 England and, in Wales, a local authority in the the case of a care home and a local health board in the case of a hospital.
Urgent and standard authorisations
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.
In urgent cases, a standard authorisation must be granted within the seven days unless the supervisory body grants a further seven days for the urgent authorisation, in exceptional circumstances. A standard authorisation, without a prior urgent authorisation, must be granted (or not) within 21 days of application.
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 to consent to their car arrangements; 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.
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 (BIA) 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 the person concerned, which should usually be a family member or friend. If no family member or friend is available, the supervisory body will appoint a paid 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
Independent mental capacity advocates must be appointed for people subject to the Dols under the following circumstances:
- Where a request has been made for a standard authorisation in respect of a person and a BIA has been appointed, an IMCA must be appointed to represent the person through the assessment process if there is no one appropriate to consult. Such an IMCA is known as a section 39A IMCA, after the section of the Mental Capacity Act under which they are appointed.
- Where a person is under a standard authorisation, another person has been appointed as an relevant person’s representative but is no longer able to fulfil that role and there is no one appropriate to consult, an IMCA (known as a section 39C IMCA) must be appointed.
- Where a person is subject to a standard authorisation and has an unpaid relevant person’s representative, an IMCA must be appointed under section 39D of the act if the person or the representative requests it, or the supervisory body believes the person would benefit from the support of an IMCA.
History of the Dols
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.
Future of the Dols
In March 2014, two events took place that will have a significant bearing on the future of the Dols. A House of Lords committee to examine the implementation of the Mental Capacity Act recommended that the Dols be scrapped, on the basis that they were not well understood, had been poorly implemented and were leading to thousands of people being unlawfully deprived of their liberty.
Shortly afterwards, the Supreme Court made a ruling that, in effect, lowered the threshold for what constituted a deprivation of liberty in care. The court’s acid test stated that a person was deprived of their liberty under Article 5 of the the European Convention of Human Rights if:
- Their care placement was the responsibility of the state;
- They were subject to continuous supervision and control; and
- They were not free to leave.
The case has led to a ten-fold increase in Dols cases, putting enormous pressure on the care system. In response, the government has asked the Law Commission to review the law on deprivation of liberty and propose a new framework.
Initial proposals were published in July 2015 for consultation and a draft bill for reform will be published in 2016. If backed by the government, legislation would likely be introduced in the 2017-18 session of Parliament.
Catch up on the latest news on the Dols here.