Deprivation of Liberty Safeguards (DoLS)
Find out what a deprivation of liberty is and what Deprivation of Librerty safeguards are, including why they are needed and how they work.
- The Mental Health Act 1983
- Which sections of the Mental Health Act are relevant to dementia?
- The key roles of the Mental Health Act
- Safeguards and challenges to a detention under the Act
- Lasting powers of attorney and deputies
- You are here: Deprivation of Liberty Safeguards (DoLS)
- The law in Northern Ireland
- The Mental Health Act 1983 - other resources
The Mental Health Act 1983 and guardianship
Sometimes, caring for a person with dementia involves reducing their independence or restricting their free will in some way. If they are receiving care in a hospital or care home, their routine may be decided for them, and they may not be allowed to leave.
If the person has not freely chosen where they will live in order to receive care, or the type of care that they receive, it is possible that this care will take away some of their freedom. In some cases, this may amount to a ‘deprivation of liberty’. This is not always a bad thing, and it is often necessary when caring for someone, but it should only happen if it is in the person’s best interests.
The Mental Capacity Act 2005 includes the Deprivation of Liberty Safeguards (DoLS) – a set of checks that aims to make sure that any care that restricts a person’s liberty is both appropriate and in their best interests. This page explains what counts as a deprivation of liberty, what the safeguards are, and how to go about getting a deprivation of liberty authorised and reviewed.
DoLS only apply for people in care homes and hospitals. There is a separate system for people in ‘supported living arrangements’ – where people live and receive care in the community. They also only apply to people living in England and Wales. At the time of writing (March 2016) there is no similar system in Northern Ireland.
Mental Capacity Act 2005
If you are not familiar with mental capacity and the Mental Capacity Act 2005, it might help to explain why DoLS are needed. Read more here.
What is a deprivation of liberty?
Examples of making decisions or placing restriction on someone with dementia could include deciding on the person’s routine, stopping them from walking about at night, or preventing them from leaving. Care home or hospital staff should make sure that all care a person receives involves as little restriction as possible. However, sometimes it will be necessary to take away some of the person’s freedom to provide them with the care they need.
Sometimes, taking away a person’s freedom in this way can amount to a ‘deprivation of liberty’. 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.’
Examples of how this definition can be broken down are shown below.
Continuous supervision and control
The kind of care that people receive in care homes or hospitals will usually involve both supervision and control. Staff will monitor and watch residents or patients, they will decide activities, and they will control things such as meals, leisure time and bedtimes. This care is often what a person needs, but it can deprive people of their freedom, if they have not consented to it.
A person may be deprived of their liberty if they are being supervised and controlled on a continuous basis. This does not mean that someone needs to be watched and controlled 24 hours a day. If there are significant periods of the day where they are being watched and controlled, this could count as a deprivation of liberty.
Not free to leave
If a person is not free to leave the place where they are being cared for, they may be deprived of their liberty. It is important to note that this can be hypothetical. The person may not be physically able to leave by themselves, but the question is still the same – if they tried to leave, would they be stopped? If the answer is yes – ie they did not consent to this care and are not free to leave – then they are being deprived of their liberty.
The person lacks capacity to consent
The care a person receives can only deprive them of their liberty if they have not consented to it. If the person has freely chosen and consented to their situation, then they have not given up any of their freedom. A deprivation of liberty can only occur in cases where someone lacks the ability to decide themselves, known as ‘mental capacity’, where they will live and what care they will receive.
To have capacity to make a decision, someone must be able to:
- understand the information about the decision – in these cases, the options for care and living arrangements
- retain that information long enough to be able to make a decision
- weigh up the information available and understand the consequences of the decision
- communicate the decision – this could be by any possible means, such as talking, using sign language or even simple muscle movements like blinking an eye or squeezing a hand.
What are Deprivation of Liberty Safeguards (DoLS)?
If a care home or hospital plans to deprive a person of their liberty in the ways listed above, they must get permission. To do this, they must follow strict processes called the Deprivation of Liberty Safeguards (DoLS). DoLS are a set of checks that are designed to ensure that a person who is deprived of their liberty is protected, and that this course of action is both appropriate and in the person’s best interests.
The definition of what counts as a deprivation of liberty is wide, and so most people with dementia living in care homes and hospitals will receive care that falls under the definition. This isn’t a bad thing, however. It is often necessary to provide care in this way. DoLS offer protection to ensure that, when someone’s freedom is restricted, it is both in their best interests and, where possible, done in the least restrictive way.
The key elements of these safeguards are:
- to provide the person with a representative – a person who is given certain rights and who should look out for and monitor the person receiving care (see The ‘relevant person’s representative’ below)
- to give the person (or their representative) the right to challenge a deprivation of liberty through the Court of Protection (see ‘Other useful organisations’)
- to provide a mechanism for a deprivation of liberty to be reviewed and monitored regularly (see ‘Reviews’ below).