DEPRIVATION OF LIBERTY SAFEGUARDS DoLS (England and Wales)

DEPRIVATION OF LIBERTY SAFEGUARDS

DoLS (England and Wales)

Introduction

The Mental Capacity Act 2005 (MCA) is a law that protect your rights if you become unable to make decisions for yourself about:

• your money
• how your health is looked after
• how you are looked after in other ways.

Deprivation of Liberty Safeguards (DoLS) are a set of rules within the Mental Capacity Act. These rules apply if you can't make certain decisions about how you are cared for. This could be because of memory problems, a head injury, mental illness or a learning disability. 

These rules only apply if:

You are looked after in a hospital or care home

AND

The staff keep you under continuous supervision and stop you leaving.

Why would staff want to do this? Basically, to keep you safe. So they may also need to:

• stop you from doing some things that you want to do
• need to give you a particular treatment or type of care that you cannot be given unless you are deprived of your liberty.

Whatever staff do has to be necessary, in your best interests and must follow a set of rules. The DoLS rules are there to protect you. They make sure that what the staff do is needed - and to stop them if they are not.

What is “deprivation of liberty”?

This is a legal term – but rather unclear. If you live in a care home, or hospital, you would expect to be prevented from doing things which could be dangerous. If there are a lot of things that you can't do, this is called a “deprivation of liberty”.

For example, someone with dementia might need help with their washing, dressing or keeping themselves clean, even if they don't want that help. Such things don't need any legal special permission. However, if there are a lot of other things that they are stopped from doing, it becomes more serious – the person is said to be deprived of their liberty.  

This can only happen legally with the authority of a DoLS authorisation (unless you’re detained in hospital under the Mental Health Act – see leaflet Being Sectioned or it is authorised by a judge).

When “normal care” becomes “deprivation of liberty” is not always clear. The courts have identified certain pointers which suggest that someone is more likely to be deprived of their liberty, rather than just restricted. 

These include:

• if you want to leave  and you’re being stopped from doing so, either by staff or a locked door, for more than a few hours;
• if you have to be given medication to stop you leaving;
• if the staff of the home or hospital take control of your life so that they decide if and when you can have visitors, speak on the phone, go out of the building and so on.

This should be seen as a serious matter. The rules are there to make sure that you are protected. 

Can I be deprived of my liberty at home?

No, only in a care home or hospital.

What’s the process?

Step 1 – the alert

Usually staff from the care home or hospital (called the Managing Authority) where you are receiving care will contact the Local Authority (this is called the Supervisory Body).

They will tell the Local Authority that they think they will have to deprive you of your liberty. If they don't do this, anyone (including a member of your family or a friend) can tell the Local Authority that they think you are being deprived of your liberty. 

Step 2 – the assessments

The Local Authority will assess your situation – this must be done within 21 days. If they think that you do have to be deprived of your liberty, for your own safety, they will grant what is called a “Standard Authorisation”. 

If a more urgent decision is needed, the Managing Authority of the care home or hospital can issue an “Urgent Authorisation”. This lasts for no more than 7 days, but can rarely be extended for up to a further 7 days.  During this time the Local Authority must finish the full assessment for a Standard Authorisation.

What are the assessments and who does them?

At least two trained professionals are:

1.           The “Best Interest Assessor” (BIA)

This is most often a qualified social worker, but it could be a nurse, occupational therapist or psychologist. This person decides if you are being deprived of your liberty. They can also advise on how to reduce the restrictions on you and how long the authorisation should be for.

2.           The “Mental Health Assessor”

This will be a doctor and will usually be a psychiatrist, geriatrician or general practitioner with experience in dealing with mental disorders. They will have had extra training in the DoLS process. 

This person decides if you suffer from a “mental disorder” or not. This covers a range of conditions, but includes dementia, long-term effects of brain injury and a learning disability.

In order to reach the right decision, the BIA (see above) will need to go through  all your assessments and care plans. They also have to ask you what you think -  and also anyone who is important to you. This could be family members, carers, advocates or anyone who has been legally appointed to make decisions on your behalf such as a Lasting Power of Attorney.

The BIA will also advise on who could represent and support you while the authorisation is in place.  This is often a close family member or friend and is called the Relevant Person’s Representative. 

What are the criteria?

For an authorisation is to be granted, the BIA and the Mental Health Assessor must decide if the six criteria are met:

1. You must be aged 18 or over.
2. You must suffer from a mental disorder.
3. Either the BIA or the Mental Health Assessor will decide whether or not you are able to make decisions about the care you receive in the hospital or care home. This is called the Mental Capacity Assessment.

a. If you are not able to make the decisions about care the BIA will decide if what is being done means that you are being deprived of your liberty.  If this is so, it must be in your best interests and a reasonable way to keep you safe.  This is called the Best Interests Assessment. 

b. If what is being done is unnecessary or is too severe then the authorisation cannot go ahead - you must not be deprived of your liberty. The hospital or care home has to act on the recommendations of the BIA.

5.  

a. If it is thought that you need care or treatment for your mental disorder in hospital then the Mental Health Act has to be used and DoLS no longer applies. This is called the Eligibility Assessment.

b. If you are on a Mental Health Act Guardianship Order or Community Treatment Order, you can only be given a DoLS authorisation if it does not conflict with these orders.

6.  The No Refusals Assessment decides if:

a. the DoLS is to enable you to receive treatment which you have refused in an advance decision, then DoLS cannot be applied.

b. DoLS also cannot be applied if the authorisation would conflict with any decisions made by someone who is legally permitted to make them on your behalf.  This could be a deputy appointed by the court someone with Lasting Power of Attorney.

For each of the assessments the relevant assessor completes a standard form and submits it to the Local Authority. A copy of the authorisation is then given to the people involved in your care, including your representative.

How long can I be deprived of my liberty for?

The Best Interest Assessor will say how long they think it should last – it can be up to one year. They will usually suggest that the authorisation is in place for the shortest time possible. This may only be just long enough so that the hospital or care home can arrange for extra help so that your care is not as restrictive. The Local Authority usually accepts the BIA suggestion, but can shorten the time. The authorisation can be renewed, if necessary. The process for renewal is exactly the same as the initial process and all the six criteria have to be met.

Can I be forced to accept medical treatment under this law?

No. DoLS is nothing to do with medical treatment. You can only be given medical treatment against your will if you lack capacity to make a decision about a specific treatment. If you have capacity to make the decision, then your consent is required before you can be given the treatment. If you lack capacity, then the authority to give you the treatment comes from the Mental Capacity Act (see the Mental Capacity Act leaflet).

Can I appeal against being deprived of my liberty?

In the first instance, you should discuss your concerns with the staff or the manager looking after you and with your family or friends.  If you or anyone else is unhappy about your situation then you/they can ask for a review.  A review should also happen if your circumstances change. It is a check to make sure that you are being treated in the right way. 

If you have no-one to speak up for you, then you have a right to the help of an Independent Mental Capacity Act Advocate (IMCA) (the staff should help you to contact an IMCA or the Local Authority will tell you how to contact them). You do not pay for this service.

If you are still deprived of your liberty and you disagree that you meet the criteria, an appeal can be made to the Court of Protection and a judge will make the final decision. The Court of Protection is a specialist court for people who cannot make some or all decisions for themselves. You can apply for help to pay for the costs of going to Court of Protection. 

The Code of Practice tells you more about the Deprivation of Liberty Safeguards.