The Mental Capacity Act 2005 includes the Deprivation of Liberty Safeguards (DoLS). DoLS are a set of checks that protect adults who are detained by a care home or hospital, to make sure the decision is in their best interest, is the least restrictive option and only when the adult lacks mental capacity.
DoLS only apply to people in hospitals and care homes.
DoLS has a wide definition, but as an example it may apply to a person with dementia who lives in a care home. The care home may decide their routine for them and not let them leave. If a hospital or care home plans to do this they must follow the strict rules set out in the Deprivation of Liberty Safeguards (DoLS).
A DoL occurs when:
‘The person is under continuous supervision and control and is not free to leave, and the persons lacks mental capacity to consent to these arrangements’
A person is considered to have mental capacity (the ability to make their own decisions) if they are
- able to take in information,
- retain it, and
- make decisions based on this information.
Everyone is presumed to have mental capacity, and it is the responsibility of the care giver to assess whether or not a person lacks mental capacity; it cannot be assumed that mental capacity is lacking due to illness. For more information about mental capacity, visit the Mental Capacity Act page.
The local authority is known as the supervisory body and is responsible for authorising all DoLS applications, in this case it is Thurrock Council.
How are decisions on deprivation of liberty made?
It is the responsibility of the hospital or care home to determine whether or not a person will be deprived of their liberty, and if so, to seek standard authorisation from that person’s local authority; for Thurrock residents, the local authority is Thurrock Council.
Thurrock Council will ensure that the adult has appropriate representation to ensure that their best interests are put forward. This may be a relative, friend, carer or Independent Mental Capacity Advocate. The council must ensure that the representative (also known as Relevant Person’s Representatives) are the most appropriate for the role, for example a relative that supports the adult being detained may not be the most appropriate to challenge the decision.
A form will be sent to the Council who then have 21 days to determine whether a person should be deprived of their liberty. If any of the conditions under the DoLS are not met, the Council will refuse the application. The hospital and care home will then need to find a less restrictive way to support the adult.
In situations where a person may need to be deprived of their liberty before the Council can respond, the hospital or care home can deprive liberty using an urgent authorisation. This allows the care provider to deprive an adult of their liberty for up to seven days; however, the Council must be informed and the hospital or care home must apply for a standard authorisation.
Urgent authorisations should only be used in exceptional circumstances.
How do we make sure detaining an adult is in their best interest?
There are a number of Deprivation of Liberty Safeguards in place to protect the adult, in the following ways:
- protect them from being detained when it is not in their best interest,
- prevent detention when less restrictive options are available,
- provides the adult or their representative with the right to challenge a decision (see Deprivation of Liberty orders – apply for authorisation for information on challenging a decision
- Two independent assessors who will prevent deprivation of liberty being authorised if conditions are not met;
- Family, friends and carers will be consulted as part of the assessment process;
- The appointment of an Independent Mental Capacity Advocate (IMCA) when there is no family of friends to represent the individual; and
- The principles of the Mental Capacity Act should be considered at all times.
If standard authorisation is granted the following safeguards are available:
- A relevant representative should be appointed. This will be a family member, friend or appointed advocate;
- The adult and their representative can require the authorisation to be reviewed at any time, to see whether the criteria to deprive the person of their liberty are still met, and if so whether any conditions need to change;
- The adult and their relevant person’s representative have a right to challenge the deprivation of liberty in the Court of Protection at any time;
- The support of the IMCA, who should explain their role directly to the adult and their representative when a new authorisation has been granted; and
- The home or hospital should do all it reasonably can to explain to the adult who has been detained, and their family/friend of their rights to appeal and give support.
Professionals, if you are unsure – contact the MCA and DoLS Manager for advice:
Call: 01375 659810
Add link to SET BIA guidance