1. Deprivation of Liberty

Deprivation of Liberty Safeguards (DoLS) protect the human rights of people who lack capacity to consent to care or treatment in a hospital or registered care home, when – in their best interests – they receive care that amounts to a deprivation of liberty (as defined by Article 5, Right to Liberty, Human Rights Act 1998).

DoLS is an amendment to the Mental Capacity Act 2005 (MCA), as introduced by the Mental Health Act 2007.

The Supreme Court held that a deprivation of liberty can also occur in domestic / home type settings where the State is responsible for imposing such arrangements. This may include a placement in a supported living arrangement in the community. These must be authorised by the Court of Protection.

There is a difference between deprivation of liberty (which is unlawful, unless authorised) and restrictions on an individual’s freedom of movement.

1.1 Restrictions and restraint

Restrictions of movement (if in accordance with the principles and guidance of the MCA) can be lawfully carried out in someone’s best interest to prevent harm. This includes use of physical restraint where that is proportionate to the risk of harm to the person and in line with best practice.

Neither the MCA nor DoLS can be used to justify the use of restraint for the protection of members of staff or other service users or patients.

Examples of restraint and restriction include:

  • using locks or keypads to prevent a person leaving a specific area;
  • administration of certain medication, for example to calm a person;
  • requiring a person to be supervised when outside;
  • restricting contact with family and friends, including if they could harm the person;
  • physical intervention to stop someone from doing something which could harm themselves;
  • removing items from a person which could harm them;
  • holding a person so they can be given care or treatment;
  • using bedrails, wheelchair straps, and splints;
  • requiring close supervision in the home;
  • the person having to stay somewhere they do not want;
  • the person having to stay somewhere their family does not want.

2. Acid Test for Deprivation of Liberty

The Supreme Court clarified (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) that there is a deprivation of liberty where the person:

  • is under continuous supervision and control; and
  • is not free to leave;
  • lacks capacity to consent to these arrangements; and
  • whose confinement is the responsibility of the State.

The Court held that factors not relevant to determining whether there is a deprivation of liberty include:

  • the person’s compliance or lack of objection;
  • the reason or purpose behind a particular placement; and
  • the extent to which it enables them to live a relatively normal life for someone with their level of disability.

This test is far broader than those set by previous judgements, so that disabled people should not face a tougher standard for deprivation of liberty than people who are not disabled.

This ruling has implications for practice. Advice from the Department of Health in 2014 stated that:

‘Relevant Staff should be aware of the following areas:

  • Mental Capacity Act principles: the five principles and specifically “the least restrictive” principle (see Mental Capacity);
  • restrictions and restraint: when designing and implementing new care and treatment plans for individuals lacking capacity, be alert to any restrictions and restraint which may be of a degree or intensity that mean an individual is being, or is likely to be, deprived of their liberty (following the acid test supplied by the Supreme Court);
  • least restrictive alternative: where a potential deprivation of liberty is identified, a full exploration of the alternative ways of providing the care and/ or treatment should be undertaken, in order to identify any less restrictive ways of providing that care which will avoid a deprivation of liberty.

A Court of Protection judgement – Birmingham City Council v D (January 29, 2016) – widens the acid test to apply to 16 and 17 year olds who lack capacity. It also widens the accountability of the State in relation to the acid test, to apply to all those persons who may be deprived of their liberty in the community that the State has a duty to authorise. This does not just apply to persons who are in receipt of a package of care or an assessment, but anyone “who lacks capacity to decide on their place of care and residence, is under continuous supervision and control and is not free to leave.” This judgement, therefore, widens the acid test to include purely private arrangements.

3. Identifying Deprivation of Liberty: Care Providers

Care providers do not have to be experts about what is and is not a deprivation of liberty, but need to be able to recognise when a person might be deprived of their liberty by applying the acid test and take the required action by applying for an authorisation to the supervisory body.

Final decisions about whether a person is being deprived of their liberty are made by the Courts.

It is crucial that hospitals and providers recognise when they may be depriving a patient of their liberty, and are therefore breaching the law.

If an organisation breaches a person’s human rights by unlawfully depriving them of their liberty, it could result in legal action being taken, including a court declaration that the organisation has acted unlawfully and breached the adult’s human rights, a claim for compensation, negative press attention and remedial action taken by commissioners and regulators.

An assessment must be made as to whether the living arrangements made for a person who lacks capacity amount to a deprivation of liberty. If so, the deprivation has to be authorised by the Court of Protection for domestic settings such as supported living arrangements.

The deprivation must be subject to regular independent checks.

4. Authorising Deprivation of Liberty in the Community

Applications to authorise a deprivation of liberty in the community can be made to the Court of Protection (contact the local authority’s legal department for more details). In most cases the authorisation is a paper based application that should not require a court hearing.

The Court wants each person who is deprived of their liberty in the community to have a representative to represent their wishes and feelings, to ensure there is independent scrutiny of the local authority’s care and support plan and the application to authorise a deprivation of liberty in the community.

5. Domestic Settings: Supported Living Arrangements

The Supreme Court has held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This will include a placement in a supported living arrangement in the community. Where there is, or is likely to be, a deprivation of liberty in such placements that must be authorised by the Court of Protection.

6. Objections

A judgement by Mr Justice Baker Royal Courts of Justice February 2015 ruled that in all cases where a person lacks capacity, a DoLS assessment has been completed and the relevant person objects to their placement, a referral must be made to the Court of Protection under the Human Rights Act.

7. Relevant Person’s Representative

Everyone who is subject to a deprivation of liberty authorisation will be appointed a representative, who must maintain contact with them in person, and represent and support them in all related matters, including requesting a review or applying to the Court of Protection to present a challenge to a DoLS authorisation.

If there is no family member, friend, or informal carer suitable to be the person’s representative, the DoLS office will appoint a paid representative. Their name should be recorded in the person’s health and social care records.

They have the right to request the advice and support of an IMCA (see Advocacy).

8. Reviews

The service must monitor and review the adult’s care needs on a regular basis, and report any change in need or circumstances that would affect the deprivation of liberty authorisation or any attached conditions. It must request a DoLS review if:

  • the adult (who is the ‘relevant person’) no longer meets any qualifying requirements;
  • the reasons they meet the qualifying requirements have changed;
  • it would be appropriate to add, amend or delete a condition placed on the authorisation due to a change in the adult’s situation;
  • the adult or their representative has requested a DoLS review, which they are entitled to do at any time.

The local authority will commission assessors to carry out a review of an authorisation when statutory conditions are met. Statutory DoLS reviews do not replace health or social care reviews.

9. Alerting to Unlawful Deprivation of Liberty

If a person (professional or otherwise) suspects a person is being deprived of their liberty under the acid test (see Section 2, Acid Test for Deprivation of Liberty) and it has not been authorised, they should first discuss it with the service manager.

If the manager agrees the care plan involves deprivation of liberty, they should be encouraged to make a request for authorisation. Everyone should be satisfied the care plan contains the least restrictive option available to keep the person safe, and it is in the person’s best interest.

If the service does not agree to make a request for a DoLS authorisation, the concerned person should approach the Court of Protection to discuss the situation and report the unlawful deprivation.