It introduces new responsibilities and legal duties on registered care homes and hospital in-patient services. DOLS also force new requirements of the local authorities and primary care trusts.
The Deprivation of Liberty Safeguards is an important new protection for people in hospitals and care homes who may need to be deprived of their liberty in order to protect them from serious harm. DOLS do not apply if a person is detained in hospital under the Mental Health Act 1983. However, they do apply if a person is under guardianship, part of Section 7 in the Mental Health Act.
What is Deprivation of Liberty?
Some people who live in hospitals and care homes can’t make their own decisions about their care or treatment because they lack the mental capacity to do so. They need more care and protection than others, to ensure they don’t suffer harm.
Sometimes, caring for and treating people who need extra protection may mean restricting their freedom. For instance, it might be necessary to stop a person from leaving the hospital or care home, or staff might have to make most of the choices for a person inside the care home. If there are a lot of restrictions like this, it may be that the person is being deprived of their liberty.
Hospitals and care homes should always try to avoid this, but sometimes there is no alternative to deprive a person of their liberty because it is in their best interests.
Some examples are:
- Someone resists being admitted to a place and they are restrained and or sedated so that they can be admitted.
- Staff have complete control over the care and movement of someone for a considerable time.
- The institution has decided that someone cannot be released into the care of others, or allowed to live somewhere else.
- Carers ask for someone to be discharged to their care and this is refused.
- Someone is not able to maintain social contacts because of restrictions placed on their seeing other people.
- Someone loses independence because they are under continuous supervision and control.
What are the Deprivation of Liberty Safeguards?
From 1st April 2009, there are new changes to the legislation covering the support and care of people who lack mental capacity (Mental Capacity Act 2005). These changes are known as the Deprivation of Liberty Safeguards (DOLS) .It introduces new responsibilities and legal duties on registered care homes and hospital in-patient services. DOLS also force new requirements of the local authorities and primary care trusts.
The Deprivation of Liberty Safeguards is an important new protection for people in hospitals and care homes who may need to be deprived of their liberty in order to protect them from serious harm. DOLS do not apply if a person is detained in hospital under the Mental Health Act 1983. However, they do apply if a person is under guardianship, part of Section 7 in the Mental Health Act.
They apply to anyone who:
- Is aged 18 or older
- Is suffering a disorder or disability of the mind
- Lacks the capacity give consent to their care/treatment
- Is receiving care or treatment that might amount to a deprivation of liberty under Article 5 of the European Court of Human Rights
If there is no alternative but to deprive such a person of their liberty, the new Deprivation of Liberty Safeguards say that a hospital or care home must apply to the council (for care homes) or to the Primary Care Trust (for hospitals) for authorization. The council or Primary Care Trust are known as the Supervisory Body. The Supervisory Body must assess the person concerned to see whether they:
- are deprived of their liberty
- come under the new law
- are being deprived of their liberty in their best interests
If the Supervisory Body authorizes a deprivation of liberty, this will be for a limited time (up to a maximum of 12 months) and the Supervisory Body will put conditions in place to ensure the person’s welfare. The Supervisory Body will also ensure that the person being deprived has a ‘Representative’ who will keep in touch with the person, support them in all matters regarding the authorization, and ask for a review of the authorization when necessary. This Representative could be a family member, a friend or a paid advocate.
Of course, sometimes a person’s family or friends might not agree with an authorization. The Safeguards also allow people the right of appeal against a decision in a court of law.
What are Authorities’ Duties under the Safeguards?
Hospitals and Care Homes (these are called Managing Authorities) have a duty under the Safeguards to:
(a) provide care and treatment in ways that do not deprive a person of their liberty, or if this is impossible…
(b) apply to the Supervisory Body for authorization of the deprivation of liberty
The Council and the Primary Care Trust (these are called Supervisory Bodies) have a duty under the Safeguards to:
(a) assess any person for whom the Managing Authorities request a deprivation
(b) authorize a deprivation if it is necessary in the best interests of a person to whom the Safeguards apply
(c) set any necessary conditions to ensure the person’s care/treatment regime meets their needs in their best interests
(d) set a timescale for how long a deprivation can last
(e) keep records of who is being deprived of their liberty
What should I do if I feel a person is being deprived of their liberty?
(i) Discuss the issue with the hospital or care home. They may be able to change a person’s care or treatment to ensure the person is not being deprived, or may be able to explain why a person is not actually deprived of their liberty.
(ii) Request that the Supervisory Body (Wigan Council) reviews the person, to see whether they are being deprived of their liberty. This request can be in writing, or by phone. Contact details for these requests (for care homes and for hospitals) are isted at the bottom of the page.
Making an application
When deprivation of liberty is the least restrictive option and is in the best interest of the relevant person, the hospital or care home must apply for a standard authorisation of deprivation of liberty.
Applications should be made to the MCA DoLS Coordinator (Contact details below)
To make an application please use the appropriate form and send (fax or recorded delivery mail) together with all supporting evidence (care plan and risk management plan) to the DoLS Coordinator (Contact details below)
The supervisory body will perform six assessments in order to determine whether the deprivation of liberty can be authorised.
What if the application is authorised?
If the supervisory body authorises a deprivation of liberty, this will be for a limited time (up to maximum of 12 months) and the supervisory body will put conditions in place to ensure the person's welfare.
The supervisory body will also appoint a representative for the person being deprived of their liberty. The representative’s role is to provide support and to represent the person deprived of their liberty in all matters regarding authorisation and request a review of the authorisation where necessary.
The safeguards also ensure that the person deprived of their liberty and their family, carers and friends have right to appeal against a decision in a court of law.
Review of authorisation
If circumstances change then the hospital or care home should apply for a review.
The person concerned, or their representative, can also request a review.
The supervisory body must also carry out a review when statutory review grounds are met.
What should I do if I am concerned that a person is being deprived of their liberty?
First, you should discuss your concerns with the hospital or care home. They may be able to change this person’s care or treatment arrangements to ensure that the deprivation of liberty is avoided, or may be able to explain why the person is not actually deprived of their liberty unlawfully. A standard letter is available for this purpose but this request does not have to be in writing.
If you disagree with the managing authority’s response to your concerns you can contact the DoLS Coordinator directly and request to investigate an unauthorised deprivation of liberty.
