Deprivation of Liberty Assessments
What are the Deprivation of Liberty Safeguards?
The Deprivation of Liberty Safeguards (DoLS) are a legal framework designed to protect individuals who are deprived of their liberty (Article 5 of the European Convention on Human Rights). The safeguards that the DoLS regime provide are part of the Mental Capacity Act (MCA) 2005 in England and Wales. The primary aim of DoLS is to ensure that vulnerable individuals who may lack the mental capacity to make certain decisions are not arbitrarily deprived of their liberty, and that their rights are protected in accordance with the law; particularly their right to speedy access to court to determine whether their detention is lawful.
The safeguards aim to balance the need to protect individuals who lack mental capacity to consent to their care arrangements in hospitals or care homes with their fundamental right to freedom. While it may be necessary to restrict someone's liberty in some situations for their own safety or well-being, the law requires that such restrictions are imposed in a proportionate manner and for as short a time as necessary.
Who Is Affected by DoLS?
The Deprivation of Liberty Safeguards apply to individuals who are aged 18 or over, who lack capacity to consent to their care arrangements, and who are in care homes or hospitals. This can include individuals with conditions such as advanced dementia or those receiving treatment for mental health issues. The safeguards aim to ensure that such individuals are not subject to undue restrictions without a proper legal basis.
Key Components of DoLS
Assessment Process - For a Local Authority (acting as the supervisory body) to authorise a deprivation of liberty, a detailed assessment is undertaken by an appropriately trained doctor and a health or social care professional who has also qualified as a Best Interests Assessor. The individual must be assessed by professionals in various areas, including their mental capacity, whether they are at risk of harm, and whether the deprivation of liberty is in their best interests. The assessments must also consider whether less restrictive alternatives are available.
Authorisation - If the assessments indicate that a deprivation of liberty is necessary, the local authority or supervisory body must authorise the restriction. The authorisation must specify the terms of the deprivation, including its duration, and the reasons for it. An authorisation can last for up to 12 months, after which it must be reviewed.
Independent Review and Safeguards - The safeguards ensure that individuals subject to a deprivation of liberty have access to independent reviews. This includes the right to appeal the decision to deprive them of their liberty, ensuring that the process remains fair and transparent.
Best Interests and Proportionality - A central principle of the Deprivation of Liberty Safeguards is that any restriction on an individual’s freedom must be in their best interests and proportionate to the risks they face. This means that the least restrictive options should always be considered and employed.
Can a Person be Deprived of their Liberty in Other Settings?
Yes, although a different approach is adopted. The DoLS regime, whereby the restrictions can be authorised by the supervisory body only applies to care homes (including nursing homes) and hospitals. If a person lives anywhere else, such as their own home or supported living, or is aged 16 or 17, an application to the Court of Protection is made to request that the court orders the deprivation of liberty is granted. The information required by the court is similar to that required for the DoLS.
Are You a Court of Protection Lawyer?
We have a team of experienced Best Interests Assessors (BIA) and we can be instructed as experts in Court of Protection matters. If you are representing a person's application to their detention, we can be instructed to undertake any of the assessments that require a BIA including mental capacity and best interests.