Deprivation of Liberty Safeguards (DoLS)

The Mental Capacity Act Deprivation of Liberty Safeguards (DoLS) (April 2009) is part of the legislation covering the support and care of people who lack the mental capacity to make decisions on their care or treatment and have an impairment of the mind/brain (but who are not detained under the Mental Health Act 1983).

These safeguards are in response to the 2004 European Court of Human Rights (ECHR) judgement involving an autistic man who lacked the capacity to consent. He was kept at Bournewood Hospital by doctors against the wishes of his carers and the court found that he had been deprived of his liberty unlawfully. New legislation was introduced to close the 'Bournewood Gap'.

These safeguards provide protection for a very vulnerable group of people who are cared for in hospitals, or in care homes, registered under the Care Standards Act 2000, and are designed to:

  • Ensure people can be given the care they need in the least restrictive regimes
  • Prevent arbitrary decisions that deprive vulnerable people of their liberty
  • Provide safeguards for vulnerable people
  • Provide them with rights of challenge against unlawful detention
  • Avoid unnecessary bureaucracy.

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 which may mean restricting their freedom.

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. Many people in hospitals and care homes may have their liberty restricted, but not all will be deprived of their liberty. The following factors need to be considered:

  • Whether professionals or carers have complete and effective control over assessment, care, treatment, contacts, movement and residence
  • Whether the person will be under constant supervision and control and not free to leave
  • Whether restraint is used including sedation
  • Whether the person would be prevented from leaving if they attempted to do so
  • Whether a request from carers for the person to be discharged into their care is likely to be agreed
  • Whether the person can maintain social contacts
  • Whether the person has choice about their life within the home or hospital.

What is the Deprivation of Liberty Safeguards (DoLS)?

If there is no alternative but to deprive such a person of their liberty, the Deprivation of Liberty Safeguards say that a hospital or care home must apply to the Supervisory Body (Council) for a Standard Authorisation under the Deprivation of Liberty Safeguards Legislation. The Supervisory Body (Council) will arrange for a number of statutory assessments to be undertaken to assess the person concerned to see whether they:

  • Are deprived of their liberty
  • If the restrictions imposed by the care home or hospital come under the legislation and are lawful
  • If the restriction(s) imposed by the care home or hospital are essential to prevent the person from harm and whether the restrictions are in the persons best interests

If the Supervisory Body (Council) authorises a deprivation of liberty, this will be for a limited time (up to a maximum of 12 months) and they will put conditions in place to try and reduce the need for the restrictions to be continued to prevent the person being deprived of their liberty. They 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 authorisation, and ask for a review of the authorisation 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 authorisation. The safeguards also allow people the right of appeal against a decision in a court of law.

Who do the DoLS apply to?

The Safeguards apply to those:

  • Aged 18 and over
  • Who suffers from a mental disorder or disability of the mind – such as dementia or a profound learning disability
  • Who lacks the capacity to give informed consent to the arrangements made for their care and / or treatment
  • Whose deprivation of liberty (within the meaning of Article 5 of the ECHR) is considered, after an independent assessment, to be in their best interests to protect them from harm.

The Deprivation of Liberty Safeguards Scheme is used to assess and authorise deprivations of liberty in care homes, hospice and hospitals. However, a “deprivation of liberty” that is “attributable to the State” can occur in other “community settings”. This includes supported living arrangements and domestic settings.

These would require an application to the Court of Protection for authorisation.

What are the authority’s duties under the safeguards?

Hospitals and care homes (referred to as managing authorities) have a duty to:

  • Provide care and treatment in ways that do not deprive a person of their liberty
  • If this is not possible, apply to the Supervisory Body for authorisation of the deprivation of liberty.

Wigan Council (in this instance known as a Supervisory Body) has a duty to:

  • Assess any person for whom the managing authorities request a deprivation of liberty
  • Authorise a deprivation if it is necessary and in the best interests of a person to whom the safeguards apply
  • Set any necessary conditions to make sure the person's care/treatment meets their needs in their best interests
  • Set a timescale for how long a deprivation can last
  • Keep records of who is being deprived of their liberty.   

Making an application to deprive liberty

When a care home or hospital considers that there is no other option but to impose restrictions for care or treatment that may be depriving a person of their liberty which they believe are in the best interest of the person, the hospital or care home must apply for a Standard Authorisation to allow the restrictions, care or treatment to continue.

To request a DoLS authorisation, ask for a review or action anything relating to an existing DoLS authorisation, care providers will need to use one of the forms produced by the Association for Directors of Adult Social Services (ADASS). For example, Form 1 is now a combined urgent and standard authorisation form.

What should I do if I feel a person is being deprived of their liberty?

Discuss the issue with the hospital or care home managers/staff. They may be able to change a person's care or treatment to make sure the person is not being deprived of their liberty, or they may be able to explain why a person is not actually deprived of their liberty.

Following this, you can request that the Supervisory Body (Wigan Council) reviews the person to see whether they are being deprived of their liberty. For further information and advice, you can write or email:

  • Address: Mental Capacity Act and Deprivation of Liberty Safeguards Team, Wigan Council, Hindley Town Hall, Cross Street, Hindley, Wigan, WN2 3AX
  • Email: DoLS@Wigan.gov.uk

If a Wigan resident is suspected to be deprived of their liberty in another borough, the Supervisory Body would be Wigan Council.

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