A new law came into force from April 2009 that safeguards those people who lack capacity to consent to the care or treatment they receive and are being cared for in registered care homes, registered nursing homes or hospitals.
What are the Deprivation of Liberty Safeguards?
The Deprivation of Liberty Safeguards (DOLS) are a supplement of the 2005 Mental Capacity Act. The DOLS provide additional protection for the most vulnerable people living in care homes, nursing homes or hospitals.
Who does the legislation apply to?
only apply to people who lack capacity to consent to the care or treatment they receive as well as:
- being are over 18
- in receipt of care in a hospital or registered care home setting
- if the care they receive deprives them of their liberty
- they are not detained under the Mental Health Act
Supreme Court Ruling
A judgement concerning ‘Deprivation of Liberty’ was handed down by the Supreme Court on 19 March 2014:
The judgement concerns the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, the deprivation must be authorised by a court or by the Deprivation of Liberty Safeguards (DOLS) procedures in the Mental Capacity Act 2005, and subject to regular independent checks.
Department of Health have also issued information and guidance relevant to all support and care providers who work with people who may lack mental capacity. Managing Authorities, care providers and commissioners should familiarise themselves with this.
Law Society have published a practical guide on the law relating to deprivation of liberty safeguards.
Guidance for managing authorities
'Managing authorities' (i.e. care homes and hospitals) should familiarise themselves with this judgement and consider the implications for their own practice. If considered appropriate they should seek independent legal advice.
Under the provisions of the Mental Capacity Act (MCA) it can be lawful to restrict or restrain a person where it has been assessed to be in their best interests in order to prevent harm to that person, as long as:
- The least restrictive method is used for the shortest period of time that is necessary to achieve the outcome.
The restriction does not amount to a deprivation of the person's liberty.
When to make an application for DOLS
Applications for DOLS must only be made as a result of an MCA compliant and properly recorded, best interest decision for that person. Managing authorities are reminded of their responsibilities and the guidance outlined in the DOLS Code of Practice.
Applications for DOLS must be made where the person lacks the mental capacity to decide about (consent to or refuse) the accommodation and support arrangements assessed to be necessary for them. As well as the following:
- the person is subject to continuous supervision and control by a third party (e.g. care / support workers)
- the person is not free to leave their accommodation
Northamptonshire County Council is not able to give legal advice to managing authorities or other providers and neither can it advise, in the absence of a formal request for a DOLS authorisation, whether a person's particular circumstances amount to a deprivation of liberty.
How to make an application for DOLS
The Northamptonshire DOLS Service is the referral point for
all referrals for those people where their care is funded by a Northamptonshire funding body, including requests for extensions, further periods of authorisation for those already in receipt of an authorisation and reviews. Please complete the form below:
Request a deprivation of liberty safeguards authorisation
If you are unsure of how to create an account to use the online form, please see the document below:
The DOLS Service staff are available to discuss any queries regarding potential deprivation of liberty issues. Due to legal requirements please contact us on our direct line below: