Changes as a result of Coronavirus
This section provides information about what action a practitioner should take if they are concerned that an adult is potentially being unlawfully deprived of their liberty. For more general information about applying the Deprivation of Liberty Safeguards (DoLS) in practice, staff should refer to their organisation’s DoLS guidance / policy and procedures. Staff may also contact the local authority specialist DoLS teams if they need further advice or information. Details are available on the local council websites:
Please note: The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019. LPS will provide protection for people aged 16 and above who are or who need to be deprived of their liberty in order to enable their care or treatment and lack the mental capacity to consent to their arrangements, in England and Wales. The government has committed to bringing LPS into force to replace the Deprivation of Liberty Safeguards (DoLS). It had been planned for an implementation date of 1 October 2020. However, this has now been postponed until an anticipated date of April 2022. See Liberty Protection Safeguards Factsheets (Department of Health and Social Care).
February 2021: This chapter was amended to add the note above regarding the timetable for the introduction of Liberty Protection Safeguards.
1. Deprivation of Liberty
The Deprivation of Liberty Safeguards (DoLS) were introduced in 2009 to protect against arbitrary deprivations of liberty in either a care home or hospital. The Safeguards 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 their 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.
In March 2014, the Supreme Court held that a deprivation of liberty can also occur in community settings, such as the person’s own home or a supported living environment, where the State is responsible for imposing such arrangements. Deprivation of Liberty in this context must be authorised by the Court of Protection.
1.1 Identifying and Addressing Potential Deprivations of Liberty
Relevant case law (Storck v Germany, 2005) confirms that, in order to determine whether a person is deprived of their liberty, within the meaning of Article 5(1) of the European Convention of Human Rights, three conditions need to be satisfied:
- the objective element of an individual’s confinement – the type, duration, effects and manner of implementation and the degree of intensity of the restrictions upon the person (Guzzardi v. Italy 1981);
- the subjective element – the person lacks capacity to consent to the confinement;
- the confinement is imputable to the state (that is one for which the state can be said to be responsible, or aware of).
More recently, in March 2014, the Supreme Court confirmed that if a person is also under ‘continuous supervision and control’, and ‘is not free to leave’, then they are potentially being deprived of their liberty. This is commonly known as the ‘acid test’ (which emerged from P v Cheshire West and Chester Council and P and Q v Surrey County Council). The Supreme Court ruling significantly widened the criteria for DoLS, and more people now fall within the scope of DoLS.
The Courts do not expect care providers to be experts about what is, and is not, a deprivation of liberty, but they do expect staff to be able to recognise when a person might be at risk of deprivation of liberty, by applying the conditions as described above.
Therefore, care providers must consider any restrictions / restraints when designing and implementing new care and treatment plans for individuals lacking capacity. They must also 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.
Where a potential deprivation of liberty is identified, the care provider must explore the alternative ways of providing the care and/ or treatment, in order to identify any potentially less restrictive ways of providing that care which will avoid a deprivation of liberty.
If the deprivation of liberty cannot be avoided then the Courts expect care providers to take the required action, by applying for an authorisation to the supervisory body (the Local Authority). Organisations and care providers must refer to their local policies and procedures for guidance on how to apply for a DoLS authorisation.
If an organisation fails to take appropriate action then they risk breaching a person’s human rights by unlawfully depriving them of their liberty. This is a serious issue which could attract regulatory, civil or criminal action against the care provider.
2. Alerting to Unlawful Deprivation of Liberty
If a person (professional or otherwise) suspects an individual is being deprived of their liberty, and the care provider has not taken appropriate action by applying for an authorisation to the relevant supervisory body, then they should first discuss their concerns with the care provider. The care provider should review the care regime and, where necessary, make an application for a DoLS authorisation.
If the care provider does not agree to make a request for a DoLS authorisation, the concerned person should approach the local authority, as the supervisory body, to discuss the situation and report their concerns. The concerned person may also contact the Care Quality Commission if the concerns relate to a care home or a hospital.