Luton Borough Council

Deprivation of Liberty Safeguards (DOLS)

Safeguarding procedures to protect people from the unlawful deprivation of their liberty.

The Mental Capacity Act 2005 states that every adult has the right to make his or her own decisions, and must be assumed to have the mental capacity to make them, unless it is proved otherwise.

The Act, which provides a statutory framework for acting and making decisions on behalf of individuals who lack mental capacity, came fully into force in October 2007.

The Deprivation of Liberty Safeguards (DOLS) were added to the Mental Capacity Act to provide safeguards for some of the most vulnerable people in society – those who need to be accommodated in care homes and hospitals under situations which may be restrictive, but who the lack the capacity to give consent to their accommodation and treatment.

On March 19 2014, the Supreme Court made a judgment which led to the deprivation of liberty safeguards being extended to domestic settings, such as supported living accommodation.

The Act allows restrictions and restraint to be used, but only if they are in the person’s best interests.
There may be situations when it is best for someone without capacity to be looked after in a way that takes away their freedom. In these situations an authorisation can be made under the Deprivation of Liberty Safeguards.

What is a deprivation of liberty?

It can be difficult to decide whether someone’s liberty is being taken away. Each situation is assessed on its own merits. Taking away a person’s right to make their own decisions is a very serious matter and should be avoided unless absolutely necessary. The law states that this should only be allowed if it is in the person’s best interest and the only way to prevent them from suffering harm.

Some of the restrictions and restraints that could be in place include:

using locks or key pads which stop a person going out, or into different areas of a building
the use of some medication, for example, to calm a person
close supervision in the home
not being allowed to leave the care setting
requiring a person to be supervised when out
restricting contact with friends, family and acquaintances, including if they could cause the person harm
physically stopping a person from doing something which could cause them harm
removing items from a person which could cause them harm
holding a person so that they can be given care or treatment
bedrails, wheelchair straps, and splints
the person having to stay somewhere against their wishes
the person having to stay somewhere against the wishes of a family member

The law recognises that there may be times when restraint may be necessary to keep someone who lacks capacity from coming to harm by using a proportionate response.

Care providers should first consider if there is a better, viable option available to the person that may be less restrictive. If there is not, a deprivation on liberty authorisation can be applied for under DOLS.

How is deprivation of liberty authorised under DOLS?

Deprivation of liberty can occur in a care home, hospital or domestic setting such as supported living accommodation.

For people within domestic settings, applications are made to the Court of Protection (COP). The care provider must however inform the local authority or the organisation commissioning the individual’s care; who would then make the application to the COP.

For people within a care home or a hospital, Deprivation of Liberty Safeguards are authorised by the local authority. This includes where there are plans to move a person to a care home or hospital where they may be deprived of their liberty.

The care home or hospital is known as the ‘managing authority’ in the DOLS.
Where a managing authority thinks it needs to deprive someone of their liberty they have to ask for this to be authorised by a ‘supervisory body.’ They can do this up to 28 days in advance of when they plan to deprive the person of their liberty. Under DOLS the supervisory body is the local authority. For care homes, this is the local authority where the person is ordinarily resident. Usually this will be the local authority where the care home is located, unless the person is funded by a different local authority.
The managing authority must fill out a form requesting a standard authorisation (form 4). This is sent to the supervisory body which has to decide within 21 days whether the person can be deprived of their liberty.
The supervisory body appoints assessors to see if the conditions are met to allow the person to be deprived of their liberty under the safeguards. These include:

the person is 18 or over (different safeguards apply for children)
the person lacks capacity to decide for themselves about the restrictions which are proposed so they can receive the necessary care and treatment
the restrictions would deprive the person of their liberty
the proposed restrictions would be in the person’s best interests
whether the person should instead be considered for detention under the Mental Health Act

If any of the conditions are not met, deprivation of liberty cannot be authorised. This may mean that the care home or hospital has to change its care plan. For example, if it would be in the person’s best interests to be supported in a less restrictive way.
If all conditions are met, the supervisory body must authorise the deprivation of liberty and inform the person and managing authority in writing. It can be authorised for up to one year.
The person does not have to be deprived of their liberty for the duration of the authorisation. The restrictions should stop as soon as they are no longer required.
Conditions on the standard authorization can be set by the supervisory body. These must be followed by the managing authority.
Standard authorisations cannot be extended. If it is felt that a person still needs to be deprived of their liberty at the end of an authorisation, the managing authority must request another standard authorisation.

Urgent authorisations

A person may need to be deprived of their liberty before the supervisory body can respond to a request for a standard authorisation. In these situations the managing authority can use an urgent authorisation.
Urgent authorisations are granted by the managing authority itself. There is a form that they have to complete and send to the supervisory body (form 1).
The managing authority can deprive a person of their liberty for up to seven days using an urgent authorisation. It can only be extended (for up to a further seven days) if the supervisory body agrees to a request made by the managing authority to do this (form 2).
When using an urgent authorisation the managing authority must also make a request for a standard authorisation (form 4). The managing authority must have a reasonable belief that a standard authorisation would be granted if using an urgent authorisation.
Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person. Their knowledge of the person could mean that deprivation of liberty can be avoided. The managing authority should make a record of their efforts to consult others.

What should I do if I think a person is being deprived of their liberty without it having been authorised?

If you think that a person may be deprived of their liberty you should bring this to the attention of the manager of the home or the hospital ward so they either change their care or seek authorisation. Other options are to inform the supervisory body to make a safeguarding alert to the local authority.

In Luton, contact adult safeguarding on the numbers below.

To challenge what may be an unlawful deprivation of liberty, contact the Court of Protection.