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The Deprivation of Liberty Safeguards (DoLS)
If a person has mental capacity it means they are able to make decisions for themselves. When a person lacks mental capacity, it means that they are unable to make a particular decision or take a particular action for themselves, at the time the decision or action needs to be taken.
- A person may lack capacity to make some decisions for themselves, but will have capacity to make other decisions (this could be about being able to decide what to wear or eat, but not being able to make a decision about financial matters).
- A person may lack capacity to make a decision for themselves at a certain time, but may be able to make that decision at a later date. This could be because they have an illness or condition that means their capacity changes.
- Some people may always lack capacity to make some types of decisions, while others may learn new skills that enable them to gain capacity and make decisions for themselves.
The law says that when someone lacks mental capacity, they are unable to do one or more of the following:
- Understand information given to them.
- Retain that information for long enough to be able to make a decision.
- Weigh up the information available to make a decision.
- Communicate their decision.
The Mental Capacity Act 2005 is the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. It introduced a number of laws to protect these individuals and ensure that they are given every chance to make decisions for themselves.
The underlying philosophy of the Mental Capacity Act is to ensure that any decision made or action taken, on behalf of a person who lacks the capacity to make that decision or take that action themselves, is made in their best interests.
Contact the DoLS Team
For further information please contact the DoLS Team.
Telephone: 01642 528460
Email: [email protected]
Address: DoLS Team, 2nd Floor, Queensway House, Billingham, Stockton-on-Tees, TS23 2NL
What are the Deprivation of Liberty Safeguards (DoLS)?
The safeguards were introduced in 2009 (as part of the Mental Capacity Act) to provide legal protection for vulnerable people in care homes or hospitals who are, or may become deprived of their liberty.
Sometimes when a person lacks capacity to make a decision about their care and support arrangements, it may be necessary for the organisation delivering that care and support to request an authorisation to legally deprive a person of their liberty. This could be because, for a person’s own safety, it may be necessary to restrict their freedom (by stopping them from leaving the place where care or treatment is being provided, for example).
When can a request for an authorised Deprivation of Liberty be made?
In March 2014, the Supreme Court made a landmark judgement about what determined a Deprivation of Liberty. Following the cases “P v Cheshire West and Chester Council” and “P & Q, the Official Solicitor v Surrey Council” (commonly referred to as the “Cheshire West Judgement”), the legal definition of, and the test for Deprivation of Liberty must be followed.
For a person to be deprived of their liberty, they must be:
- Subject both to continuous supervision and control and
- Not be free to leave.
This is known as the “acid test” for Deprivation of Liberty. It has also said that the following are not relevant when determining whether a Deprivation of liberty is occurring:
- The person’s compliance or lack of objection to the care arrangements.
- The relative normality of the placement (whatever the comparison made; each person’s circumstances must be considered individually).
- The reason or purpose behind a particular placement.
If a person lacks capacity to consent to care arrangements involving a Deprivation of Liberty, authorisation is needed either through the Deprivation of Liberty Safeguards in the Mental Capacity Act or from the Court of Protection.
The Deprivation of Liberty Safeguards Process
The DoLS place the responsibility on Managing Authorities (care homes or hospitals) to request authorisation of a Deprivation of Liberty.
Managing Authorities must apply to a Supervisory Body for authorisation of the DoL where it has been identified that a person who lacks capacity is being, or risks being, deprived of their liberty. The supervisory body for Stockton is Stockton-on-Tees Borough Council.
Deprivation of Liberty in Domestic Settings
The Supreme Court has ruled that a Deprivation of Liberty can occur in domestic settings where the State is responsible for putting in place such arrangements. This will include supported-living arrangements in the community.
Where there is, or is likely to be, a deprivation of liberty occurring in these circumstances, the deprivation must be authorised by the Court of Protection.
There are two types of authorisation.
When a supervisory body gives a standard authorisation of DoL, the managing authority may lawfully deprive the relevant person of their liberty in the care home or hospital named in the authorisation.
Standard authorisations can be granted for no more than 12 months.
Managing Authorities can give an urgent authorisation for deprivation of liberty where:
- The need for the person to be deprived of their liberty is so urgent that deprivation needs to begin before a standard authorisation request is made, or
- A request for a standard authorisation has been made but the managing authority believes that the need for the person to be deprived of their liberty has become so urgent that the deprivation of liberty needs to begin before the request is dealt with by the supervisory body.
This means that an urgent authorisation can never be given without the supervisory body having a reasonable expectation that the qualifying requirements for a standard authorisation are likely to be met.
Urgent authorisations should normally only be used in response to sudden unforeseen needs. However, they can also be used in care planning.
An urgent authorisation cannot be granted for more than 7 days.
In exceptional circumstances, however, it may be extended for a further period of 7 days, but this must be authorised by the Supervisory Body.
Please see the leaflet Information about making an application to the Court of Protection to challenge an authorisation for further details.
What happens once an authorisation request is made?
Stockton-on-Tees Borough Council’s DoLS Team will arrange for a number of assessments to be completed.
- Mental Health, Mental Capacity and Eligibility Assessments (completed by an independent Mental Health Assessor).
- Best Interests Assessment (completed by a qualified Best Interests Assessor, usually a Social Worker, Occupational Therapist or Nurse).
When the completed assessments have been returned, a Senior Manager checks the assessments, and if it is appropriate, the Deprivation of Liberty will be authorised.
How long does a Deprivation of Liberty authorisation last?
There is no standard length of time for a Deprivation of Liberty to be authorised, as each authorisation will be decided on an individual basis. The maximum length of time that an authorisation can be granted for is 12 months.
Once an authorisation is in place, it can be reviewed at any time. Anybody with an interest in the authorisation can request a review.
What happens at the end of a period of authorisation?
If it is felt that a Deprivation of Liberty is still occurring, or is still necessary, a new application for authorisation must be submitted to the Supervisory Body.
If the Deprivation of Liberty is no longer required, the authorisation will be reviewed and ended accordingly.