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Deprivation of Liberty Safeguards (DOLS)
Explaining the Deprivation of Liberty Safeguards
The Deprivation of Liberty Safeguards concern individuals 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 subject to Section 7 of the Mental Health Act (Guardianship).
It is important to remember that the Safeguards are there to protect very vulnerable people from arbitrary decision making and ensure that they have a voice.
Under DOLS, registered care homes and hospitals are called ‘managing authorities’. Care homes and hospitals have responsibility for preventing unnecessary deprivations of liberty. They must also recognise if a person is deprived of their liberty or if a deprivation of liberty is likely to happen.
Like other health and care providers, care homes also have a responsibility to promote the independence of each person in their care and to support them in their choices.
Care homes will need to provide additional support to residents who lack the mental capacity to make a decision for themselves. Where they believe a person in their care may be deprived of their liberty, care homes and hospitals are responsible for granting themselves an ‘urgent authorisation’ and applying to the relevant supervisory body for a ‘standard authorisation’, using the standard forms available from the Department of Health:
On March 2014, the Supreme Court handed down its judgement in the case of “P v Cheshire West and Chester Council” and another “P and Q v Surrey County Council”
The Supreme Court has confirmed that to determine whether a person is objectively deprived of their liberty there are two key questions to ask, which they describe as the “acid test”:
- Is the person subject to continuous supervision and control?
- Is the person free to leave? (The person may not be saying this or acting on it but the issue is about how staff would react if the person did try to leave.)
This now means that if a person is subject both to continuous supervision and control and not free to leave they are deprived of their liberty.
The following factors are no longer relevant to this:
1. The person’s compliance or lack of objection
2. The relative normality of the placement and
3. The reason or purpose behind a particular placement
The Judgement is significant in determining whether arrangements made for the care and/or treatment of an individual lacking capacity to consent to those arrangements amount to a deprivation of liberty.
The MCA DOLS apply to anyone:
- 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 consent to the arrangements made for their care or treatment
- For whom receiving care or treatment in circumstances that amount to a deprivation of liberty may be necessary to protect them from harm
Deprivation of Liberty outside of hospitals and care homes
Although the DOLS scheme only applies to Hospital and Care Homes, the definition of a Deprivation of Liberty applies to all settings in which care is provided, including a person’s own home and/ or supported living. A Deprivation of Liberty in such a situation must be authorised by a Court of Protection Order under the Mental Capacity Act Deprivation of Liberty Safeguards.