Lifetime Planning and Wills specialist, Jenny Greenland, explains Deprivation of Liberty Safeguards, and the appropriate tests to be applied.
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What is a deprivation of liberty?
Deprivation of Liberty Safeguards (DoLS) were introduced by the Mental Capacity Act 2005 (MCA). Their aim is to prevent the unlawful detention of adults in hospital and care settings who lack the mental capacity to choose where they should live and/or to consent to treatment and care. Restrictions placed on a person’s liberty in order to keep them safe must nevertheless be appropriate and proportionate.
The MCA safeguards apply if a person is:
- over 18;
- has “an impairment of or a disturbance in the functioning of, the mind or brain”;
- whose freedom is being restricted; and
- who does not have the mental capacity to make decisions concerning their care and/or treatment.
What is the test for determining whether a person has been deprived of their liberty?
The Supreme Court has determined that a person is deprived of their liberty if they are:
- not free to leave; and
- are under continuous supervision and control; and
- lack capacity to consent to these things.
Examples might be:
- forcing the person to take medication against their will;
- staff making all decisions about the person’s treatment, assessments, accommodation or visitors;
- staff exercise complete control over the person’s movements and care;
- staff refusing to discharge the person to the care of relatives or others.
The reason for, or the purpose of, the living arrangement is irrelevant. It is also irrelevant that such arrangements are considered normal for people with similar disabilities or cognitive impairments. And it does not matter whether the person objects or not to their living arrangements.
The Court has also made it clear that if there is a requirement for a person to be detained in hospital for assessment or treatment under section 2 or 3 of the Mental Health Act 1983, then a DoLS must not be used as a shortcut to avoid sectioning.
Who can ask for a DoLS assessment?
In most cases, the care provider will ask for a DoLS assessment from social services. If the person is in hospital, this may be a doctor, nurse or administrator. In a care home setting, it will generally be the manager of the home.
As a concerned person – perhaps you are a relative or friend – you may feel that the person has been deprived of their liberty. If so, in the first instance, you should speak to the person in charge of their care about whether changes can be made in the provision of care so as not to limit their freedom. However, if they believe that limiting the person’s freedom is necessary in order to keep them safe, they must apply for a standard deprivation of liberty authorisation.
If they already have authorisation but no longer think this is necessary, they or you should speak to the supervisory body (the local authority or the NHS).
Who carries out the DoLS assessment?
A DoLS assessment is carried out by at least two professionals, neither of whom should be involved in the person’s care. They are referred to as:
- the best interests assessor – usually a social worker, nurse, occupational therapist or psychologist.
- the mental health assessor – who must be a doctor (usually a psychiatrist) who is able to assess whether the person has a mental disorder and how a deprivation of liberty will affect their mental health.
They are appointed by the local authority (social services) who must ensure they have the relevant training and experience.
What are the Deprivation of Liberty Safeguards (DoLS)?
If standard authorisation is granted, the following safeguards apply:
- A representative for the person must be appointed as soon as possible. This is usually a family member or a friend who consents to take this role. However, if there is nobody willing or able to take on this role on an unpaid basis, the supervising body must pay somebody, such as an Independent Mental Health Advocate (IMHA).
- The person or their representative can require the authorisation to be reviewed at any time. It may be that the criteria to deprive the person of their liberty may no longer be met. If so, the conditions may need to change.
- The person and their representative have the right to challenge a deprivation of liberty at any time in the Court of Protection.
- If the person’s representative is unpaid, both are entitled to the support of an IMCA.
- The care provider should do everything it reasonably can to explain to the person and their family what their rights of appeal are and give them support.
When should a deprivation of liberty be reviewed?
A deprivation of liberty should last the shortest time possible and should not exceed twelve months. It must be reviewed regularly by both the care provider and the supervisory body during that time. The review should check whether the standard authorisation is still required and the qualifying requirements are still present. Any change of circumstance should trigger an immediate review. For example, it might be that the person has regained mental capacity or that agreement has been reached on caring for them in a less restrictive way.