Alzheimer's Society's view on Deprivation of Liberty Safeguards

Find out what we think about the Deprivation of Liberty Safeguards (DOLS).

Alzheimer's Society believes that people with dementia have equal entitlements to human rights, and as such should have their right to liberty protected. This means that if there is ever a situation where measures amounting to a deprivation of liberty are considered, these should only be used as a last resort, when it is in the best interests of the person and when all practical and reasonable steps have been taken to avoid depriving somebody of their liberty. What will be appropriate must be decided on a case by case basis that takes into account the wishes of the person and their particular circumstances.

The safeguards are an important way to protect the rights of people with dementia. Significantly, they provide a means for a representative of the person with dementia to challenge a deprivation of liberty if they believe it is inappropriate. Alzheimer’s Society believes that the system must be robust and properly resourced to ensure that it works effectively to protect a person with dementia’s right to liberty. 

Background

The Deprivation of Liberty safeguards (DOLS) are in place to protect people who lack capacity from being unlawfully deprived of their liberty. They apply to people who lack capacity to make a decision about their care or treatment but are not detained under the Mental Health Act.

In a legal case from 2014 the Supreme Court provided a test for defining a deprivation of liberty. They said that a deprivation of liberty occurs when:

‘The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.’

This could include for example, a person with dementia who is living in a care home and is monitored to stop them from leaving. This meant that a lot more people are considered deprived of their liberty than previously including many people living with dementia. Last year, 51% of people with DOLS applications had dementia recorded as their primary disability (NHS Digital).

Coroner's inquests

Due to the development of the DOLS system, a person who died whilst under a DOLS was considered to have died while in state detention and so was subject to an automatic inquest. This was having a hugely detrimental impact on people with dementia and their families, causing emotional distress and lengthy delays, even where the person’s death was expected and due to natural causes.  On 31st January 2017, the Policing and Crime Act became law. As of 3rd April (when this part of the Act comes into a force), a person who dies while under DOLS will no longer be considered to be in state detention and therefore subject to an automatic inquest by a coroner. Alzheimer’s Society worked with MPs and others on this law to ensure that an inquest would only be legally required when necessary.  

The coroner will still have a duty to investigate any death where there is a suspicion that it might have resulted from violence or unnatural causes or where the cause of death is unknown, as well as deaths that occur in other types of state detention such as prisons or police cells. The law also does not prevent inquests being opened where a person does die under DOLS – coroners will still be able to investigate at their discretion.  Families and care staff can also still raise the need for an investigation. 

Law Commission review

As part of their review of the MCA in 2014, the House of Lords also looked at the DOLS. After hearing evidence, they described them as ‘not fit for purpose.’ As a result, the Government asked the Law Commission to review the safeguards and propose a replacement. The results of this review were published on 13th March 2017. The Law Commission produced a report alongside a Draft Bill which proposed numerous changes to the Mental Capacity Act and a completely new system to replace the DoLS, which they called the ‘Liberty Protection Safeguards.’

We welcome the Law Commission’s proposals to reform the current law, which is failing people with dementia, their families and those that care for them. We urge the Government to consider the proposals and act as soon as possible to ensure the rights of people with dementia are upheld.

Further information

Post-legislative scrutiny of the Mental Capacity Act, House of Lords (2014)

Mental Capacity and Deprivation of Liberty, Law Commission (2017)