Deprivation of Liberty Safeguards (DoLS) is a vital part of the Mental Capacity Act (2005) which protects the rights of individuals 18 years and older who cannot consent to their care and treatment, in a care/nursing home or hospital, while said care and treatment amount to a deprivation of liberty.
As a statutory act, it is the legal obligation of any managing authority (i.e. care/nursing home or hospital) to apply for a DoLS authorisation where it is deemed necessary to deprive the individual of their liberty in order to safeguard and protect them.
Important: Deprivation of Liberty Safeguards (DoLS) will soon be replaced by Liberty Protection Safeguards (LPS). However, this change is now not expected to come into force until 2025. Find out more.
When should I apply for DoLS?
Firstly, a mental capacity assessment of the individual’s present ability to consent to their care and treatment at the hospital/care or nursing home should be conducted, including accounting for deprivations, such as doors being locked, care supervision, support to go out into the community, medication to manage behaviour/mood etc.
It is important to remember that all mental capacity assessments are time and decision specific. After which the ‘Acid Test’ (2014) is applied to determine if the individual is being deprived of their liberties:
- Is the individual subject to continuous supervision and control?
- Is the person free to leave?
- This should consider what supporting people would do in response to attempts to leave (e.g. locked doors, missing person report to the police).
Due to the complexity of what a deprivation is, the Social Care Institute for Excellence (SCIE) recommend further items to be considered on application:
- Frequency of medication to control behaviour/presentation
- Level of physical restraint to control behaviour/presentation
- Whether the individual objects verbally or physically to their restrictions
- Whether the person is secluded, directly or indirectly
- If the placement is potentially unstable
- Whether a possible challenge to the restrictions is in progress
- If the individual is presently under a DoLS authorisation that is due to expire
How to apply
All applications for Deprivation of Liberty Safeguards (DoLS) should be made using the forms and guidance provided on the UK government website.
DoLS authorisations
The managing authority (care/nursing home or hospital) must apply for a DoLS standard authorisation as soon as they become aware that a person can not consent to their care and treatment arrangements, where possible being made in advance of an admission by the appropriate referring teams. The supervisory authority will then have 21 days to assess and determine if an authorisation is appropriate. They will check and assess:
- Age – is the individual 18 years and above?
- No refusals assessment – would the authorisation be in conflict with a court of protection decision or other factors?
- A mental capacity assessment for the specific decision of residing in the accommodation for the purpose of care and treatment
- Mental health assessment – does the individual have a mental health disorder within the scope of the Mental Health Act 1983?
- Eligibility assessment – not subject to the Mental Health Act 1983.
- Best Interest assessment – determining if this DoLS authorisation is in the individual’s Best Interest
Once an application has been completed and the outcome is known, it is the managing authority’s responsibility to update the Care Quality Commission (CQC).
At this time DoLS authorisations do not apply to settings such as supported living, shared lives and other providers, but may be necessary to identify an appropriate safeguard for their care and treatment, therefore consultations with suitable professionals should be sought.
DoLS in the community
Following several key Court of Protection (COP) cases, if an individual meets the criteria of lack of capacity for the specific decision of care and treatment arrangements alongside the Acid Test and other relevant assessments (Guzzardi, 2980), a community DoLS order (or judicial authorisation of DoLS) can be obtained through application to the COP in order to address this issue and safeguard the individual’s rights.
In these situations, it is generally the social worker’s role to identify individuals within a community setting who a community DoLS order or judicial authorisation would apply to. They should then complete a COP DOL 10 form in addition to a COP3. The managing authority also has a responsibility to ask and raise this question to the appropriate professionals and authorities.
Authorities and professional roles relating to DoLS
- Managing Authority – the establishment (normally a nursing/care home or ward) in which the individual is being supported, being responsible to ensure the least restrictive practices are in place. It is the managing authority’s responsibility and duty of care to apply for DoLS.
- Supervising Body – normally a specialist DoLS office under the local council who will assess, monitor and direct the managing authority in areas surrounding the individual’s DoLS.
- Independent Mental Capacity Advocate (IMCA) –advocates are provided through the supervisory body to ensure the Best Interests of the individual are upheld in the least restrictive format if there is no appropriate person to consult. There are further roles and points at which an IMCA may be referred to in order to support the individual’s voice.
- Relevant Person’s Representative (RPR) and a 1.2 Representative – once an authorisation is instated, an RPR is assigned. This can be the relevant person’s, or individual in question’s friend/family member if they are in agreement and are appropriate to carry out this role. It is an RPR’s responsibility to impartially represent the person in ensuring any conditions of the authorisation is met, that they are in regularly contact with both the managing authority as well as the relevant person to uphold their voice in any objection, promote the least restrictive practice and signpost to other services as required, such as request a care review from social services. A 1.2 representative is the same role but within a community DoLS authorisation.
Common misunderstandings
We have highlighted some of the more common misconceptions surrounding DoLS below. In each case, we have then explained how and why these misunderstandings are not quite right, and how it should be applied correctly.
- Misconception 1: DoLS is transferable to other venues and locations. Until the new Liberty Protection Safeguards is confirmed and released, DoLS is not transferable and only applies only to the venue in which it was assessed. As such, hospital admissions from a care/nursing provider, or periods at home need to be separately assessed.
- Misconception 2: DoLS is not necessary if the person consented to their placement on admission. An individual’s Mental Capacity can fluctuate, deteriorate or improve over time in response to complex factors including medication, environment, stimulus, health etc. If this is to happen and a person’s ability to provide fully informed consent to their care arrangements, including their restrictions, needs to be assessed; then, if appropriate, DoLS can be applied for, or in some cases removed.
- Misconception 3: If the individual is not actively objecting to their placement then they do not need a DoLS. This is another common misunderstanding. Any person who does not have capacity for their placement and their associated care must have DoLS in place to safeguard and protect their rights. As Lady Hale famously stated, ‘A gilded cage is still a cage’. A person must have the least restrictive, proportionate support in place to meet their needs and have a right to object with or without capacity. If this is not upheld, it is a breach of their human rights and a form of discrimination.