Deprivation of Liberty Safeguards are something we come across regularly within Social Work; however, understanding what they are, how important they can be and why they are necessary is often easier said than done. The following article aims to provide a brief overview of how DoLS can be used within our practice, and how key legislation can offer guidance around using them effectively.
What is Deprivation of Liberty?
The first thing to consider with DoLS is the concept of Deprivation of Liberty.
Article 5 of the Human Rights Act (1998) states that everybody has the right to liberty and security, which in most cases, protects people from having their freedom removed. This right is particularly important for people detained under mental health legislation. There are certain circumstances under which a person’s liberty can be taken away from them, which is described as a “deprivation of liberty” within the Mental Capacity Act (2005).
This is a process that may at times be appropriate; however, it should only be followed when necessary and when it is deemed to be the least restrictive way of ensuring a person’s safety. It is against the law to deprive somebody of their liberty unless this has been carried out in accordance with the Mental Capacity Act (2005).
An example of when it may be necessary to apply a deprivation of liberty would be when a person is being cared for in a hospital or care home for Dementia, and their independence and free will is being reduced or restricted. Often their routines are decided for them and they have to be given permission should they wish to leave. If the person has not freely chosen where they will live in order to receive care, or the type of care that they receive, it is possible that this care will take away some of their freedom. In some cases, this may amount to a ‘deprivation of liberty’. The Mental Capacity Act (2005) would then allow for treatment to be given if it was considered to be within the person’s best interests.
What are DoLS?
Now we have established what it means to have a deprivation of liberty, let’s move onto the DoLS themselves!
The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act (2005). The Deprivation of Liberty Safeguards is the procedure prescribed in law when it is necessary to deprive a person of their liberty, as detailed above. DoLS ensure that people who cannot consent to their care arrangements in a care home or hospital are protected if those arrangements deprive them of their liberty. Arrangements are assessed to check they are necessary and in the person’s best interests. Representation and the right to challenge a deprivation are other safeguards that are part of DoLS.
Basic Principles of DoLS:
Deprivation of liberty has three elements:
Objective element - confinement in a restricted space for a non-negligible period of time.
Subjective element - the person has not validly consented to confinement.
The detention being attributable to the state.
The Supreme Court ruled that there is a deprivation of liberty for the purposes of Article 5 if a person is under continuous supervision and control and is not free to leave, and they lack the mental capacity to consent to these arrangements. Factors identified as not relevant to a deprivation of liberty determination include:
Whether a person agrees or disagrees with their detention.
The purpose for their detention.
The extent to which it enables them to live what might be considered a relatively normal life. This means they should not be compared with anyone else in determining whether there is a deprivation of liberty.
What is Mental Capacity?
Has the individual been assessed to lack capacity to control their own decision making?
Having mental capacity is being able to understand and retain information and make decisions based on that information. A lack of mental capacity must be established before a decision can be made on behalf of somebody else. Care homes or hospitals must apply for and be granted a DoLS authorisation from a ‘supervisory body’. In England, this is always the local authority. Different rules apply in Wales, depending on whether the deprivation of liberty is in a hospital or care home. In other locations, deprivation of liberty requires an application to the Court of Protection to be lawful.
Best Interests Principle:
So what is the Best Interests Principle and when does this apply?
The ‘best interests’ principle is central to the Mental Capacity Act (2005). It informs the approach required if someone else must decide on behalf of another person if they lack mental capacity. It includes:
Presumption of capacity – everyone has the right to make their own decisions and must be assumed to have capacity to do so unless it is proven otherwise.
Right to be supported to make your own decisions – all practicable steps must be taken to help a person make their own decision before anyone concludes they are unable to do so.
Right to make eccentric or unwise decisions – people are not to be treated as being unable to make a decision simply because the decision they make is seen as unwise.
Best interests – any decision made, or action taken on behalf of somebody if they lack capacity must be made within their best interests.
Least restrictive intervention – anyone making a decision on behalf of somebody must consider all effective alternatives and choose the less restrictive of their basic rights and freedoms in relation to risks involved.
Anyone thinking of depriving somebody of their liberty must be able to balance their right to autonomy and self-determination with their right to safety. They should respond proportionately, based on best interest principles, and must abide by the DoLS Code of Practice.
Restraint and Restrictions:
These can be implemented where necessary.
As previously mentioned, the Mental Capacity Act (2005) allows restrictions and restraint to be used, but only if they are in the best interests of a person who lacks the capacity to make the decision themselves. Restrictions and restraint must be proportionate to the harm the caregiver is seeking to prevent and can include:
The use of some medication to calm a person.
Close supervision in the home, or the use of isolation.
Requiring a person to be supervised when out.
Physically stopping a person from doing something which could cause them harm.
Removing items from a person which could cause them harm.
Holding a person so that they can be given care, support, or treatment.
Bedrails, wheelchair straps, restraints in a vehicle, and splints.
Repeatedly threatening to restrain a person if they persist in certain behaviour.
Such restrictions or restraint can take away a person's freedom and so deprive them of their liberty. They should be considered when assessing whether the support offered to a person is the least restrictive way of providing that support.
How Does the Authorisation Process Work?
Before the deprivation of liberty is authorised, a person will have six assessments that may take place at the same time. It is not possible for a person to have their liberty taken away unless all the six assessments are met.
Six assessments:
An age assessment, to ensure that the person is aged 18 or over.
A mental health assessment to confirm that they have been diagnosed with a 'mental disorder' within the meaning of the Mental Health Act (2005).
A mental capacity assessment to see whether they have the capacity to decide where their accommodation should be. If they have, they should not be deprived of their liberty and the authorisation procedure should not go ahead.
A best interests assessment to see whether they are being, or are going to be deprived of their liberty and whether it is within their best interests. This should take account of their values and any views they have expressed in the past, and the views of their friends, family, informal carers, and any professionals involved in their care.
An eligibility assessment to confirm that they are not detained under the Mental Health Act (1983) or subject to a requirement that would conflict with the Deprivation of Liberty Safeguards. This includes being required to live somewhere else under Mental Health Act guardianship.
A 'no refusals' assessment to make sure that the deprivation of liberty does not conflict with any advance decision they have made or the decision of an attorney under a lasting power of attorney or a deputy appointed by the Court of Protection.
The length of the authorisation depends on the individual’s personal circumstances and how likely it is that these circumstances might change; however, the maximum time allowed is 12 months. The assessor will make a recommendation based on the individual’s best interests. The hospital or care home can request a new authorisation to begin as soon as the existing authorisation has run out. Urgent authorisations can be granted where the need for the deprivation of liberty is urgent. They can be granted for a maximum of 7 days, and they can be extended once for a further 7 days by the supervisory body.