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.
- 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?
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: