Deprivation of Liberty Safeguards (DoLS)

The Deprivation of Liberty Safeguards (DoLS), referred to as 'safeguards' in this factsheet, are part of the Mental Capacity Act (2005). They aim to protect people in care homes and hospitals from being inappropriately deprived of their liberty. The safeguards have been put in place to make sure that a care home or hospital only restricts someone's liberty safely and correctly, and that this is done when there is no other way to take care of that person safely. (See Factsheet 460, Mental Capacity Act 2005 for more information about the act.)

Who is affected?

The safeguards apply to vulnerable people aged 18 or over in hospitals and care homes who are unable to make decisions for themselves but who are not detained under the Mental Health Act (1983). When someone is formally detained under this Act, the process is known as 'being sectioned'. (See Factsheet 459, The Mental Health Act 1983 and guardianship, for more information.)

When someone who has not chosen to go to a hospital or care home but has been admitted by a relative, carer, or figure in authority (like a doctor or a social worker) it is described as being 'informally admitted'. A person could be admitted to hospital because they have had an infection, or a fall for example, but are then either kept in hospital or moved into a care home. They do not agree or object to stay in hospital or care; the decision is made by someone else, acting in their best interests.

The safeguards are likely to affect mainly older people staying in hospitals, residential care homes and residential nursing homes. This includes people with dementia who are informally admitted to a hospital or a care home, are deprived of their liberty and do not have the mental capacity/the ability to make the decision about their care or treatment.

What are the safeguards?

The safeguards came into force on 1 April 2009. They are designed to ensure that a person's loss of liberty is lawful. There are three elements to the safeguards:

• to provide the person with a representative
• to allow a right of challenge to the Court of Protection (see 'Useful organisations') against the unlawful deprivation of liberty
• to provide a right for deprivation of liberty to be reviewed and monitored regularly.

What is mental capacity?

Mental capacity means the ability to make your own decisions or take any actions affecting your daily life. These can range from everyday decisions (what time to get up, what clothes to wear, what to eat, and whether to go to the doctor when feeling unwell) to major decisions such as where to live or how to manage larger sums of money.

Some people could have difficulty making such decisions, either all of the time or just occasionally. By default everyone is assumed to have mental capacity unless proven otherwise.

The Mental Capacity Act says that someone who lacks mental capacity cannot:

• understand information given to them
• retain that information long enough to be able to make a decision
• weigh up the information available to make a decision
• communicate their decision - this could be by any possible means, such as talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.

A person with dementia in a care home or hospital cannot be kept against their will using the Deprivation of Liberty Safeguards if they have the mental capacity to decide where they want to live.

Likewise, a person with dementia cannot be restricted from taking part in a certain activity in the care home or hospital if they have the mental capacity to decide they want to do so, no matter how much risk this might entail.

Under the Deprivation of Liberty Safeguards, a trained professional, known as a best interests assessor, must decide if someone has the mental capacity to make the decision in question.

What is deprivation of liberty?

Unfortunately, there is no single legal definition of 'deprivation of liberty' so it can sometimes be difficult to establish whether it is taking place. It can be helpful to think of restrictions of a person's activity as being on a scale from minimum restrictions at one end to the most extreme restriction, being a deprivation of liberty, at the other end. There are some examples described at the end of this factsheet where restrictive activity could be seen as depriving someone of their liberty. Whether the restriction is great enough to amount to a deprivation of liberty will depend on the individual circumstances.

There have been several cases in the European Court of Human Rights and in the UK that have indicated several circumstances that may constitute a deprivation of liberty:

• a patient being restrained in order to admit them to hospital
• medication being given against a person's will
• staff having complete control over a patient's care or movements for a long period
• staff taking all decisions about a patient including choices about assessments, treatment and visitors
• staff deciding whether a patient can be released into the care of others or to live elsewhere
• staff refusing to discharge a person into the care of others
• staff restricting a person's access to their friends or family.

People should be cared for in hospital or a care home in the least restrictive way possible, and those planning care should always consider other options. However, if all alternatives have been explored and the hospital or care home believes it is necessary to deprive a person of their liberty in order to care for them safely, then strict processes must be followed. These are the Deprivation of Liberty Safeguards, and are designed to ensure that a person's loss of liberty is lawful and that they are protected.

Authorisation for deprivation of liberty

The managing authority (the registered manager of a care home or the NHS trust or authority that manages the hospital) is responsible for applying for an authorisation of deprivation of liberty for someone who lacks capacity to make their own arrangements for their care and well-being. The managing authority should do this either when someone is about to be admitted, or is already in hospital or the care home. It is unlawful to deprive someone of their liberty without an authorisation in place.

The application for a standard authorisation must be made in writing to a supervisory body. In England and Wales, this would be the local authority in the case of care homes. For hospitals this would be the relevant primary care trust (PCT) in England or local health board if in Wales.

If the supervisory body thinks that the application is appropriate, it must then commission an assessment to determine whether the qualifying criteria are met, and will either grant or refuse an authorisation as appropriate.

In an emergency, the management of the hospital or care home may grant itself an urgent authorisation, but only as long as it has applied for a standard authorisation at the same time. This urgent authorisation is usually valid for seven days, although the supervisory body may extend this for up to another seven days in some circumstances.

If you feel someone is being deprived of their liberty

If you feel that you are, or someone you know is, being deprived of their liberty speak to the hospital manager or the care home manager to see whether you are able to agree on changes that can be made to reduce restrictive practices. If the manager of the care home or the hospital trust believes that such practices are necessary to keep the person safe they must apply for a Deprivation of Liberty Safeguards authorisation.

If there is no DoLS authorisation in place and the manager does not think that such an authorisation is necessary you can approach the local authority (for a care home) or the primary care trust (for a hospital) and ask them to investigate whether an unlawful deprivation of liberty has occurred. There are template letters at the end of this factsheet you can use.

However, an authorisation should not be applied for if the person meets the criteria for detention under the Mental Health Act (1983) and either already is or could be detained under that act.

Before applying for a standard authorisation, the hospital or care home must always consider whether it is possible to provide care or treatment in such a way that they will not deprive the person of their liberty.

How does the authorisation process work?

Once it receives an application for a standard authorisation, the supervisory body must arrange for an assessment to take place within 21 days, to establish whether the qualifying requirements for an authorisation are met for that particular person. These include:

• Age - This determines whether the person is aged 18 years or over.
• Mental health - This decides whether the person is suffering from a mental health illness or disability of the mind. Mental disorder is the term used in law to describe a set of mental health conditions; one of these conditions is dementia.
• Mental capacity - This determines whether the person lacks capacity to make their own decisions about treatment or care in the place that is applying for the authorisation.
• Best interests - This establishes whether there is a deprivation of liberty and whether this is:

     -    in the person's best interests
     -    needed to keep the person safe from harm
     -    a reasonable response to the likelihood of the person suffering
          harm.

• Eligibility - This determines whether the person would meet the requirements for detention under the Mental Health Act 1983; this would make them ineligible for a standard authorisation.
• No refusals - This determines whether the person has made advance decisions about their treatment, and whether authorisation would conflict with any decisions made by, for example, someone with Lasting Power of Attorney or a court-appointed deputy.

If someone in a care home lacks capacity to make their own decisions, it may be that they have appointed someone as a Lasting Power of Attorney, or a deputy has been appointed by the Court of Protection (see 'Useful organisations'). This person cannot give consent to a deprivation of liberty and an application to the relevant supervisory body must be made in the normal way. However, the Lasting Power of Attorney or the deputy may object to the application. In this instance, the 'no refusals' assessment would mean that the authorisation would probably not be given, as any steps taken under the authorisation would conflict with the decision of the attorney or deputy.

An authorisation for a deprivation of liberty cannot be granted if any of these requirements are not met.

Who can make the assessment?

The assessment must be made by at least two assessors - a best interest assessor and a mental health assessor. The supervisory body appoints the assessors, and they must have appropriate training and experience.

The best interests assessment must be carried out by someone who is not involved in that person's care or in making decisions about it. This should make sure that they provide a truly objective assessment. The best interests assessor must be an approved mental health professional, or a qualified social worker, nurse, occupational therapist or chartered psychologist with the appropriate training and experience.

The mental health assessor must be a doctor (likely to be a psychiatrist or geriatrician) who is able to assess whether a person is suffering from a mental disorder. Dementia has been named as a mental disorder by the medical profession.

The assessors must communicate with each other and share information. Any shared information must also be taken into account when other assessments are made.

What happens if the assessors do not agree?

An authorisation may only be given for a deprivation of liberty if all the assessors conclude that the person meets all the requirements needed. If any one of the requirements are not met, then an authorisation will be withheld.

This could be for several reasons. For example, the best interests assessor may decide that the person has mental capacity to decide about the issue in question or is not likely to be deprived of their liberty. Or it may be that the person should be detained under the Mental Health Act (1983), in which case, he/she should be assessed under that legislation instead.

Who can speak for a person being deprived of their liberty?

Everyone who is subject to an authorised deprivation of liberty must have a 'relevant person's representative' (RPR). Often it will be a family member or friend, or other carer.

The relevant person's representative can gain access to documentation about the decision, ask for a review of the decision and should be informed if anything changes.

If the person has no immediate family or non-professional carer to support them through this process, the managing authority is required to inform the supervisory body. The supervisory body must then appoint an independent mental capacity advocate (IMCA) whose role is to help the person with dementia. The supervisory body has a duty to offer the services of an IMCA if it is appropriate.

The supervisory body and the managing authority must work together to ensure that the person and their representative understand the deprivation of liberty process, that they know their rights, and that they receive the right support once the authorisation process begins and once a decision has been made.

The representative must stay in touch with the person deprived of their liberty in order to fulfil their statutory role and to protect the rights of that person. The managing authority has a duty to make sure that this happens. If there is any doubt that the representative is supporting the person effectively, the managing authority must speak to them about these concerns and try to resolve the issues informally. If this is unsuccessful, they must raise the issue with the supervisory body.

How long does the authorisation last?

An authorisation can last for 12 months maximum, and should remain in force for the shortest time possible. In addition, the assessment on which the authorisation is based can remain valid for 12 months. This means that if a further authorisation is applied for within that time, the supervisory body can use the previous assessment on which to base its decision.

This should ensure that delays and costs are minimised, and also that distress to the person concerned is reduced.

The managing authority and the supervisory body must:

• make regular checks to see if the authorisation is still needed
• remove the authorisation when no longer necessary
• provide the person's representative with information about their care and treatment.

What is a review?

A review of an authorisation is a formal process that looks at whether the authorisation is still needed. This can take place at any time after the authorisation has been granted. It is up to the care home or hospital to make regular checks to see if the requirements for the authorisation are still needed, and they must inform the supervisory body if circumstances change. This is particularly important if any of the six qualifying criteria are no longer met.

In addition, the supervisory body must set up a review if any of the following people request it:

• the person subject to the authorisation
• their representative
• an IMCA who represents the individual.

A review may be requested for several reasons. The person may become subject to detention under the Mental Health Act 1983. Or they may no longer meet one or more of the six requirements for the authorisation. Sometimes they may still meet all six requirements but for different reasons from those set out in the original authorisation. Or their situation may change in other ways.

The supervisory body is responsible for carrying out the review, and for keeping everyone involved aware of the changes as they take place.

Examples

Listed below are some examples of circumstances and questions about the application of the Deprivation of Liberty Safeguards which you may find helpful.

My wife has dementia and social services want to put her into a care home. She does not want to go and I want her to stay at home with me. Can they make her go into a home using the Deprivation of Liberty Safeguards?

Deciding that someone needs to go into a care home is a big step. Social services and other health professionals (like the GP and mental health nurses) should be working with you to discuss all the possible care arrangements that would be best for your wife. This should include looking to see if there is a way that your wife can stay at home. However, in some situations it is not always possible for everyone involved to agree on the best course of action. Social services can decide if it's in someone's best interests to go into a care home if they don't have the mental capacity/ability to decide for themselves, but not using a DoLS authorisation. Such authorisation may be required if it is anticipated that the care home will need to restrict someone's liberty once they are admitted.

My father is willing to go into respite care with a certain amount of persuasion, but does this mean he is being deprived of his liberty?

The DoLS Code of Practice states that the act of taking someone to hospital or a care home is unlikely to constitute a deprivation of liberty, if it is considered to be in their best interests and if this is done by using persuasion. There are exceptions to this, for example: where restraint or medication are used, or the journey to the care home or hospital is exceptionally long in which case it may be necessary to apply to the Court of Protection for an order to cover the journey. 

Someone with dementia may go willingly into a care home, but they may want to leave soon after they get there. Care home staff can be successful in using redirection, persuasion and distraction to encourage people to stay. Do they need DoLS authorisation to do this?

It is unlikely that redirection or persuasion would constitute a deprivation of liberty although it would depend on the circumstances. The care home should have a procedure to help them identify when a deprivation of liberty might be required and to consider any steps they can take to avoid it happening. If a manager thinks that a person might need to be deprived of their liberty in the care home, and this cannot be avoided, they have a responsibility to apply for DoLS authorisation.

A best interests assessor will then decide if the person should be deprived of their liberty. If this is the case the best interests assessor will conduct a mental capacity assessment to determine whether the person is able to decide where they want to live. If the person cannot decide, the best interests assessor could decide it was in the person's best interests to stay in the care home and apply for an authorisation to restrict their liberty in the care home. Alternatively, the best interests assessor could decide that an authorisation is not required and the care plan would need to be adjusted.

The care home has stopped my husband from going to the pub on his own because they say he drinks too much and can be distressing and dangerous to other residents when he has been drinking. Is this a deprivation of his liberty?

It could be. The care home should have a procedure to help them identify when a deprivation of liberty might be required and to consider any steps they can take to avoid it happening.

If the manager thinks that a person might need to be deprived of their liberty in their care home and this cannot be avoided, they have a responsibility to apply for DoLS authorisation. An assessment would have to be done by a best interests assessor to see if he has the mental capacity to make the decision to go to the pub and if this restriction amounts to a deprivation of his liberty.

If he doesn't have the mental capacity and it amounts to a deprivation of his liberty, then the best interests assessor would decide if it is proportionate to stop him from going to the pub for his own safety and for the safety of others. If it isn't, then the authorisation would not be granted to prevent him from going to the pub. The home would have to reassess the care plan to find a way of letting him go that is acceptable, for example by allowing him to go at a certain time with someone else who can encourage him to limit his drinking to a more reasonable level.

For details of Alzheimer's Society services in your area, visit alzheimers.org.uk/localinfo
For information about a wide range of dementia-related topics, visit alzheimers.org.uk/factsheets

Useful organisations

Alzheimer's Society

Devon House
58 St Katharine's Way
London E1W 1LB
T 020 7423 3500
   0300 222 11 22 (helpline)
E info@alzheimers.org.uk
W alzheimers.org.uk

The UK's leading care and research charity for people with dementia and those who care for them. The helpline provides information, support, guidance and referrals to other appropriate organisations.

Court of Protection

Office of the Public Guardian (OPG)
Archway Tower
2 Junction Road
London N19 5SZ
T 0845 330 2900 (customer services, 9.00am-5.00pm weekdays)
E courtofprotectionenquiries@hmcourts-service.gsi.gov.uk
W www.publicguardian.gov.uk

The Court of Protection is a specialist court for all issues relating to people who lack capacity to make specific decisions. The Court makes decisions and appoints deputies to make decisions in the best interests of those who lack capacity to do so.

Department of Health

Richmond House
79 Whitehall
London SW1A 2NS
T 020 7210 4850 (8.30am-5.00pm)
   020 7210 5025 (textphone)
E dhmail@dh.gsi.gov.uk
W www.dh.gov.uk

The government department responsible for health, social care, and the National Health Service (NHS). Information about all aspects of the Mental Capacity Act and Deprivation of Liberty Safeguards can be found on the website.

Template letters

Following are three example letters which you might find helpful when you are considering communicating with a managing authority or supervisory body regarding Deprivation of Liberty Safeguards.

Template letter 1 - To the care home or hospital, requesting that they issue an urgent DoLS authorisation and apply for a standard DoLS authorisation. Download from alzheimers.org.uk/dolsrequest

Template letter 2 - To the supervisory body (local authority or primary care trust in England), requesting they investigate a possible unauthorised deprivation of liberty. Download from alzheimers.org.uk/dolinvest

Template letter 3 - Relevant person's representative requesting a review of a standard authorisation for Deprivation of Liberty Safeguards from the supervisory body. Download from alzheimers.org.uk/dolsreview

Factsheet 483

Last updated: August 2010
Last reviewed: March 2010

Reviewed by: Luke Warren, Information Officer (Legal and Welfare Rights), Alzheimer's Society and Lynn Aglionby, Solicitor, Trowers & Hamlins LLP