Deprivation of Liberty Safeguards
What are they?
The Deprivation of Liberty Safeguards 2009 (DoLS) are an amendment to the Mental Capacity Act 2005. They provide a legal framework to protect those who lack the capacity to consent to the arrangements for their treatment or care, for example by reason of their Dementia, Learning disability or Brain Injury and where levels of restriction or restraint used in delivering that care for the purpose of protection from risk/harm are so extensive as to potentially be depriving the person of their liberty.
Deprivation of Liberty Safeguards goes beyond the actions permitted under section 5 of the Mental Capacity Act (MCA) 2005.
Who does it apply to?
An application is required to the Court of Protection where the following conditions are met:-
The person has an impairmentor disturbance in the functioning of their mind or brain which could affect their ability to make a decision.
The person does not have the capacity to consent to their circumstances/care arrangements and/or treatment.
Their situation meets the acid test;
Are they under continuous supervision? and are not free to leave and live somewhere else ?
Their care is imputable to the state : the local authority or CCG is responsible for the person's care either directly or through funding.
The following groups of individuals are covered by these safeguards:
a). People in hospitals, care homes, residential and nursing homes (i.e. all CQC registered settings) Currently the provider organisation is required to apply to the Local Authority where the patient is from to have the application for Deprivation of Liberty authorised.
b). 16-17 age cohort and Looked after Children
Currently the commissioning body (NHS or Local Authority) is required to apply to the Court of Protection to have the application for Deprivation of Liberty authorised. In hospital settings it will be the responsibility of the hospital to make an application to the court of Protection where a Deprivation of Liberty is identified.
b) NHS or local authority funded care in people's homes, supported living accommodation and in shared lives placement arrangements.
c). CCGs and Local Authorities are required to apply to the Court of Protection, to have the application for Deprivation of Liberty authorised. If the care is jointly commissioned a joint arrangement should be made.
Supreme Court Ruling 2014
The supreme Court ruling in March 2014 significantly lowered the threshold regarding what could be considered a Deprivation of Liberty.
Defining a Deprivation of Liberty
The test of Deprivation of Liberty has now been revised into a so- called ?acid test? by the Supreme Court as follows The person is under continuous supervision and control AND is not free to leave Every element of this must be satisfied i.e.
? Continuous
? Supervision
? Control
? Not free to leave
What you need to know
Sometimes a deprivation of liberty (DoL) is required to provide care/treatment and protect people from harm, BUT every effort should be made to ensure care is delivered in the least restrictive environment possible, if DoL cannot be avoided it should be for no longer than is necessary
There is a legal duty on the hospital or care home, if the Safeguards apply, to request authorisation from local authority to deprive someone of their liberty for a specified period of time
A 'deprivation of liberty?
where care is funded by the local authority or a CCG can occur in other ?community settings?.
This includes supported living arrangements and domestic settings including in an individual's own home. In these settings, the DoLS scheme is not available and instead, an application must be made to the Court of Protection
