Using legislation to safeguard your relative in care – Deprivation of Liberty Safeguards (DOLS)

Using legislation to safeguard your relative in care – Deprivation of Liberty Safeguards (DOLS)

Misleading NHS Continuing Healthcare informationDeprivation of Liberty Safeguards.

There can be circumstances when vulnerable individuals in care need to have their independence removed or their free will restricted in some way, if it is in their own best interests and safety, and to prevent them from coming to harm, or from harming others.

These restrictions on an individual’s freedom are known as ‘deprivation of liberty’.

But isn’t it against the European Convention of Human Rights (ECHR) to deprive someone of their liberty?

Yes, strictly speaking, it is – unless there are good reasons.

It is recognised under Article 5 ECHR that: “Everyone has the right to liberty and security of person.  No one should be deprived of his liberty save… in accordance with a procedure prescribed by law”.

However, even when a person is deprived of their liberty, they still have rights – as provided for under the Mental Capacity Act 2005 Deprivation of Liberty Safeguards (known as ‘MCA DOLS’ or just ‘DOLS’ for short).

DOLS is an amendment to the Mental Capacity Act 2005, and applies to England and Wales only.

What is DOLS?

DOLS is a legal procedure that provides extra protection and safeguards for vulnerable individuals, who lack mental capacity, and whose liberty is being deprived in contravention of their Human Rights.

DOLS only applies to patients in hospital or residents in a care home – otherwise the Court of Protection can authorise deprivation of liberty.

DOLS cannot be used if the individual meets the criteria for detention under the Mental Health Act instead, nor if the main reason is to protect the individual from contact with others who may cause them harm.

What is deprivation of liberty?

In simple terms, it means keeping or restraining an individual in a secure environment, not allowing them freedom to go anywhere without permission or close supervision, or keeping them under constant supervision.

So, if an individual in a hospital or care home lacks mental capacity:

  • To choose where they want to live when receiving care or treatment
  • To consent to that care or treatment
  • Is not physically able to leave the place where they are being cared for of their own freewill

then that is regarded as a deprivation of liberty and DOLS safeguards are needed to protect them at all times.

When can you deprive someone of their liberty?

Depriving someone of their liberty should be avoided whenever possible.

Depriving an individual of their liberty can only ever be authorised in very specific circumstances –  when it’s in their best interests, and it is the only way to keep them safe (including making sure they have the right medical treatment).

Deprivation of liberty should only last for the shortest period possible, and only be for a particular treatment plan or course of action.

If other lesser alternatives are available, they should be considered instead.

Who is likely to need DOLS protection?

Most commonly, vulnerable individuals suffering with: severe learning difficulties, severe cognitive deficit (eg Alzheimer’s or dementia), neurological conditions such as brain injuries, and the elderly or infirm.

Is being deprived of your liberty always a bad thing?

No, not necessarily. It sounds drastic, but actually can be advantageous if it is genuinely considered necessary in the individual’s own best interests, or to keep them from harm and danger.

For example:

  • It may be necessary to keep someone with advanced dementia safe, by not allowing them to wander freely out of the care home.
  • Someone at high risks of falls may be kept in their bedroom to prevent them wandering down the stairs on their own, unsupervised.
  • If an individual is physically aggressive, they may be need to be kept in isolation or under close supervision.
  • The individual requires close supervision when outside the care home environment.
  • Strapping a person into their wheelchair, chair or bed to restrain them – perhaps to prevent them from falling and hurting themselves or others, or to provide support, or administer treatment or medication.

Is deprivation of liberty different under the Mental Capacity Act from being detained under the Mental Health Act?

Yes. 

If an individual needs to be detained for treatment for mental health problems, then the individual’s deprivation will usually fall under the Mental Health Act regulations.

Whereas, if an individual’s liberty needs to be constrained to keep them safe from harm or in their own best interests, then DOLS applies, under the Mental Capacity Act.

How is DOLS authorised?

Before an individual can be lawfully deprived of their liberty, an assessment must be carried out by the Managing Authority (ie the care home or hospital) to seek prior authorisation from the Supervisory body (ie the Clinical Commissioning Group or Local Authority).

The Managing Authority’s will appoint at least 2 assessors to carry out the DOLS assessment – a ‘best interest’s assessor’ and a ‘mental health assessor’.

There are six qualifying requirements that the assessors must consider, and All six criteria have to be met before authorisation can be made deprive an individual of their liberty:

  • Age – Is the person being deprived of their liberty aged 18 or over?
  • Mental Health – Does the individual have a ‘mental disorder’?
  • Mental Capacity – does the individual lack the ability to decide for themselves whether to be admitted to, or remain in hospital/care home, and/or receive the treatment or care being provided?
  • Best Interests– Is the deprivation of liberty in the individual’s best interests, necessary to prevent them from coming to harm, and a proportionate response to the likelihood of them suffering harm?
  • Eligibility – Is the individual eligible to be deprived of their liberty under DOLS, or should they be considered for detention under the Mental Health Act instead?
  • No refusals requirement – Does the DOLS authorisation being sought contradict, conflict or override any other prior decision to refuse treatment or support?

If the individual meets all six of the above requirements, then the assessors will notify the Local Authority or Clinical Commissioning Group of the outcome, for authorisation.

How long does DOLS authorisation last for?

 There are two types of authorisation:

Standard authorisation: deprives an individual of their liberty for a maximum 12 months.

The 12 month period cannot be extended.  Once the individual’s restrictions are no longer required, they should stop as soon as possible.

If it is considered that the individual’s needs still ought to be restrained or restricted after that period, then the Managing Authority must make a fresh application for another standard authorisation.

Urgent authorisation: In the case of an emergency, the Managing Authority may decide that it is necessary to deprive someone of their liberty immediately, and grant authorisation themselves – only if it’s in the individual’s own best interests, or in order to protect them from harm. Urgent authorisation only lasts up to a maximum of 7 days, before standard authorisation has to be obtained from the Supervisory body.

Furthermore, the Managing Authority must have reason to believe that the standard authorisation will be granted, and in addition, should consult with family, friends and carers, prior to making their decision to deprive the individual of their liberty.

In exceptional circumstances, the period can be extended by another 7 days.

If your relative is being deprived of their liberty without authorisation, you must bring this to the attention of the Managing Authority, so that the position can be regularised immediately.

The ‘relevant person’s representative’ (RPR).

As an added layer of protection under DOLS, anyone who is deprived of their liberty must have a ‘relevant person’s representative’ (RPR) to protect their interests throughout the whole process.

The RPR is usually appointed at the best interest’s assessment.

Who can act as RPR?

An RPR is usually a friend or family member, as they will inevitably know the individual best, and will be more committed to ensuring that their rights are being properly safeguarded.

In the event that there is no family member or friend able or willing to undertake the role of RPR, the Local Authority will appoint a paid representative, who has to be 18 years or older, is able to keep in contact with the relevant person, and who is willing to take on the responsibilities of the appointment.

What are the RPR’s duties?

The RPR’s duties can be onerous and emotionally challenging, and include:

  • Protecting the individual’s interest throughout the process.
  • Maintaining face-to-face contact with the individual being deprived of their liberty, and generally representing and supporting them.
  • Obtaining information about the relevant person’s care or treatment.
  • Regularly checking whether it is still appropriate to deprive them of their liberty and that their best interests are being safeguarded.
  • Making decisions in the individual’s best interests – taking into consideration any wishes or feelings they may have previously expressed, and any religious beliefs, cultural background or moral views, which may influence the RPR’s decision making.
  • Consulting widely with the individual’s Attorney (under a Lasting Power of Attorney) or Deputy (if appointed by the Court of Protection), or indeed anyone else involved in the individual’s care, or who has an interest in their welfare – to ensure all decisions are made in their best interests.
  • Checking that DOLS is being used appropriately and not as a form of ‘punishment’ or for the ‘convenience’ of professionals, carers or anyone else because it suits them to restrain the individual to make it easier to manage their needs that way – the lazy option.
  • Requesting a review if the RPR believes that the deprived individual’s circumstances have changed, for example: if deprivation of liberty is no longer appropriate, or perhaps should be modified because they no longer meet any of the six criteria for deprivation of liberty.
  • Challenging any decision the RPR disagrees with (at the Court of Protection), or seeking a variation to the authorisation (eg adding or removing a restriction), or bringing an end to the authorisation.

What happens when the authorisation ends?

The Supervisory body will then assess the six qualifying requirements, and if they see that the individual no longer meets the criteria, the authorisation must be terminated and individual should no longer be deprived of their liberty. They should also notify the RPR in writing immediately.

For further reading:

BBC Drama, “Care”, Shines A Spotlight On NHS Continuing Healthcare

Do you need legal capacity to assist your relative’s claim for NHS funding? Arguing “BEST INTERESTS”.

Cognition and mental capacity – what’s the difference?

 

6 Comments

  1. KAREN JENKINS 4 months ago

    Hi my Mum is in care home and I want her back. I have had one meeting but now have to wait for social worker to see me next week after her and the RPR has gone to see mum I should have been Mum’s RPR not some stranger that knows nothing about her my Mum has a DoLS in place no court order or safeguarding against me so I wanted to know what would happen if I took mum and never took her back? Mum is deteriorating in there and I want her back with me where she has lived for 4 years. Should I be there with mum when the social worker and RPR goes to see her? Mum has dementia. I hope somebody can help the longer she is there the worse she gets and she keeps asking me if she can come home with me

  2. Tracy O'Neill 4 months ago

    The Dols is open to abuse. My son had two Dols and the third one decided, based upon inaccurate and misleading info from the carehome, that the Dols would cease and therefore I as my son’s RPR was no longer his representiative. My son, his dad, his social worker and myself all disagreed and requested that the Dols assessment be redone. The social worker did nothing and it was left for six months. The social worker told us that it was only the carehome who could request another Dols assessment. After six months when my son was given notice to leave by his carehome (actually the notice went to social services and my son was given a day’s notice), he was asked if he would either move out of area or be made homeless understandably he chose the former. Another choice could have been disastrous. It was a shambles and the Dols system seemingly allows this to happen. Since then he has been subject to two more Dols, the BIA’s being unable to understand how the Dols was allowed to be removed previously. He won’t grow out of his learning disability, his autism is a lifelong condition and his epilepsy remains uncontrolled. Disgraceful.

  3. Carrie 5 months ago

    IMO there is enormous abuse of power and control in NHS organisations. When my adult autistic daughter was admitted to hospital (without any warning and in the most underhand manner imaginable) it was evident she would be unlawfully detained under section 5 of the mental health act if she didn’t give consent to inpatient treatment. By means of explanation, she we attending an appointment as an outpatient, and section 5 powers cannot be used for outpatients. She acted under duress as she found herself entrapped on a locked ward With no way of getting out without assistance from a member of staff. She felt she had no choice but to agree to be admitted but she was never told that as part of the inpatient treatment she would be placed under continuous (1:1, 24/7) observation by agency RMN’s or that she would not be free to leave the ward at any time. The intrusive and distressing restrictions remained in place for several days ie until she transferred to another hospital several miles away where she knew nobody, at which point the observation was immediately reduced. As she has capacity, the trust argue she was in agreement with the restrictions imposed, even though they ignored her request for the observation to be reduced. People have no protection in reality: the restrictions imposed were not medically necessary and she has no history of self harm or violence, they were simply there to stop her leaving the ward and to ensure she transferred to another hospital when a bed became available. The irony is that she didn’t even meet the trusts own criteria for inpatient treatment and she wanted to be treated in the community, not in hospital. Nobody cares about the abuses of Liberty that go on: the care quality commission won’t investigate individual complaints unless someone is being formally held under the mental health or mental capacity act; and the PHSO simply don’t have the skill set to understand the professional issues involved. It’s very sad that people are being unlawfully deprived of their liberty and that we have a NHS that deny what’s really going on and nobody holds them to account. It seems legal action is now the only way to get resolution on the breaches of human rights that go unchallenged.

  4. Meggie 5 months ago

    Thank you once again for an informative article, this time on what should happen in the Deprivation of Liberty Safeguards process. I look back once again at my own experiences with my late- father and despair that once again Dad was denied lawful processes by the NHS. None of what you describe in your article happened when Dad, who did not have the capacity to understand and give consent, was moved to a secure locked dementia unit. He was frightened of staff with large bunches of keys who to him looked like gaolers and believed he had been transferred to a “young offenders institution”. He would repeat regularly that he hadn’t done anything wrong and was trying hard to give the right answers to all their questions. It was a frightening and wholly unnecessary experience inflicted on him by the NHS. Due process and the law are denied to the elderly. If the appalling discrimination faced by the elderly was discrimination against any other protected group it would be a national scandal. For some reason discriminating against the old has become acceptable.

  5. Steve Moxon 5 months ago

    As well as using details of the DOLS assessment as input into a CHC review, doesn’t the fact of a DOLS order being in place for reasons of the need for nursing care — nursing care management, regular interventions by a nursing-qualified nurse/carer, and a nursing-qualified nurse/carer required always to be available — thereby indicate a primary health need? So a DOLS authorisation really ought to more or less preclude the need for a CHC review, shouldn’t it? Given the assessments cover similar ground, with a DOLS authorisation in place and the rules now being that there has to be up-front clear evidence of a significant change in condition for a CHC review to take place, then there is hardly a basis to begin considering a CHC review until the current DOLS authorisation expires, isn’t there? Can someone proffer what legal/healthcare ‘logic’ contradicts this?

    • Meggie 5 months ago

      Steve,
      Thanks for your comment and question. I wish I had the answer and would be interested to see the comments of others based on their experiences. Your comment has made me think some more about my late father’s situation during an 18 month fight to get him assessed for CHC. I had not thought about using the simple fact that he was moved to a secure dementia unit as evidence that he needed constant ongoing supervision to be safe. I cannot however use the actual DOL safeguards as my father was deprived of his liberty without the DOLS process being used. His family were not consulted or nor was DOLS paperwork completed(I have found nothing in his health records mentioning DOLS). I assume that just like CHC and MCA’s, DOLS were just something else that NHS staff had scant knowledge of and absolutely no understanding. Just something else that was conveniently ignored, not carried out etc etc . I have absolutely no doubt that had we not insisted on his discharge back home from the secure unit he would have been sent directly from the NHS dementia unit to a secure/locked care home with still no consideration of his liberty or legal rights. NHS staff simply do not understand the legal frameworks that are supposed to govern what they do. They follow custom and practice, entrenching systemic failings and neither doctors nor nurses stop to question what they are doing. Patients “best interests” in the truest sense are simply not considered.

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