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 provides 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 and:
- they are over 18
- receive care in a hospital or registered care home setting
- the care they receive deprives them of their liberty
- they are not detained under the Mental Health Act
Supreme Court Ruling
A recent 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) [and other providers of accommodation, support and care to people who may lack the mental capacity to make decisions about their accommodation arrangements] 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 necessary 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 and
- The restriction does not amount to a deprivation of the person’s liberty.
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.
In the light of the judgement, particular attention should be paid to:
- Whether the person lacks the mental capacity to decide about (consent to or refuse) the accommodation and support arrangements assessed to be necessary for them
- Whether they are subject to continuous supervision and control by a third party (e.g. care/support workers)
- Whether they are free to leave their accommodation
For more detailed guidance and a useful checklist to assist in deciding if a DoLs authorisation is required please see documents below:
Change in the law relating to coroners' inquests
From Monday 3 April 2017 coroners will no longer have a duty to undertake an inquest into the death of every person who was subject to an authorisation under the Deprivation of Liberty Safeguards (known as DoLS) under the Mental Capacity Act 2005.
In these cases an inquest will still be required if the person died before Monday 3 April 2017. However, for any person subject to a DoLS authorisation who dies on the 3rd, or any time after, their death need not be reported to the coroner
unless the cause of death is unknown or where there are concerns that the cause of death was unnatural or violent, including where there is any concern about the care given having contributed to the person's death.
Any person with any concerns about how or why someone has come to their death can contact the coroner directly. This will not change where a person is subject to a DoLS authorisation. What will change is that the coroner will no longer be duty bound to investigate every death where the deceased had a DoLS in place.
For more information on coroner services please see the
Coroner Services Guides.
When to make an application for DOLS
It is important that managing authorities do not make speculative applications for DOLS as a result of this judgement, and residents or patients are not subjected to unnecessary or avoidable assessments, which can be unsettling for them and their families.
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.
If a DOLS request is made solely because of the factors referred to in the Supreme Court Judgement (i.e. the person is not subject to new or additional restrictions) we would ask that as a temporary measure to enable Northamptonshire County Council to manage the current exceptional demand, managing authorities consider making a
Standard Authorisation request unless they believe that the criteria for an urgent authorisation are met.
How to make an application for DOLS
The Northamptonshire DOLS Service is the referral point for
all referrals. Please complete the form below:
Request a deprivation of liberty safeguards authorisation
Extensions and reviews
The ADASS and Department of Health DoLS project group have been working on new DoLS forms which are now available to download from the
ADASS website. This includes a new form for Managing Authorities to complete to notify the Coroner of a death whilst under DOLS authorisation.
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:
Telephone: 01604 368280