Deprivation of Liberty Safeguards (DoLS)
Deprivation of Liberty Safeguards (DoLS) are a set of checks that are part of the Mental Capacity Act 2005. Read about the DoLS procedure, which protects a person receiving care whose liberty has been limited, and tips to help you identify a deprivation of liberty.
Deprivation of Liberty Safeguards
What are Deprivation of Liberty Safeguards?
Deprivation of Liberty Safeguards (DoLS) are a set of checks that are part of the Mental Capacity Act 2005, which applies in England and Wales.
The DoLS procedure protects a person receiving care whose liberty has been limited by checking that this is appropriate and is in their best interests.
Upcoming changes to Deprivation of Liberty Safeguards
You may have heard that these legal arrangements are going to change – this has been delayed by the coronavirus pandemic. We expect the new arrangements to be introduced by the government in April 2022.
Who do Deprivation of Liberty Safeguards apply to?
Deprivation of Liberty Safeguards (DoLS) only apply to 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, including their own homes.
DoLS only apply to people living in England and Wales. There is a similar system in Northern Ireland – more details can be found from the Department of Health for Northern Ireland.
What is a deprivation of liberty?
A deprivation of liberty is when a person has their freedom limited in some way. It 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.’
A deprivation of liberty is common for a person with dementia receiving care who may have:
- decisions made for them or on their behalf
- limitations on where they are allowed to go
- their routine decided for them.
Eventually, most people with dementia will need a high level of support. Sometimes the person’s freedom is limited to give them the care they need, or to prevent them from harm. For example, a care home or staff in a hospital may stop the person from walking around at night or leaving the building, or give them medications that may affect their behaviour.
Sometimes, taking away a person’s freedom in this way is defined in law as a ‘deprivation of liberty’. When providing care, staff should make sure it limits a person’s freedom as little as possible.
Asking whether the following statements apply to the person will help you to think about whether this is a deprivation of liberty:
- The person is under continuous supervision and control.
- The person is not free to leave.
- The person lacks capacity to consent to their care arrangements.
Questions to help you identify a deprivation of liberty:
The care that a person receives in a care home or hospital will often involve both supervision and control.
Staff will check in on and watch residents or patients. They will decide activities, and they will control things such as meals and bedtimes. This care is usually what the person needs, but it can deprive them of their freedom if they have not consented to it.
If a person is being supervised and controlled on a continuous basis this may count as a deprivation of liberty. This does not necessarily mean 24 hours a day. If there are significant periods of the day where they are being watched and controlled, this could still be classed as a deprivation of liberty.
If a person is not free to leave the place where they are being cared for, they may be being deprived of their liberty.
Even if the person is not physically able to leave by themselves, the question is still the same – if they tried to leave, would they be stopped? If the answer is yes – and they are unable to consent or refuse this and are not free to leave – then they are being deprived of their liberty.
The care a person with dementia receives can only deprive them of their liberty if they have not consented (agreed) to it, because they are unable to consent or refuse.
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 only happens when someone lacks the ability to decide for themselves (known as ‘mental capacity’) where they will live and what care they will receive.
Giving consent (or ‘consenting’) means giving permission for something to happen. A person consents if they:
- agree by choice
- have the freedom and mental capacity to make that choice.
In England and Wales, the Mental Capacity Act 2005 says that a person is able to make a decision for themselves, such as giving consent, if they are able to do all of the following:
- 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 by any possible means – such as talking, using sign language or using simple movements such as blinking an eye or squeezing a hand.
If they are not able to do one or more of these due to an ‘impairment or disturbance in the functioning of the mind or brain’ – for example, dementia – then they would lack capacity to make that decision at that time.
An important aspect to consider is that a person can have the capacity to make some decisions and not others. Some decisions require them to understand more complex information or weigh up more options than others. For example, a person with dementia may be able to choose between two meal options (fish or stew), but not understand what information is relevant to making a decision about different care and treatment options (such as why the care home front door is locked and they cannot go outside).
Importantly, a diagnosis of dementia does not mean that someone automatically lacks mental capacity. Mental capacity can also change over time. For example, a person with dementia might be able to think more clearly on some days and not others, or at certain times of the day.
What does the Deprivation of Liberty Safeguards procedure include?
DoLS are a set of checks that aim to protect the person with dementia. They try to make sure that any care that limits a person’s liberty is done in the least restrictive way and is in the person’s best interests.
They try to make sure that a person who is deprived of their liberty is protected. The care must be both appropriate and in the person’s best interests.
Many things count as a deprivation of liberty, and so most people with dementia living in care homes and hospitals will receive care that counts as a deprivation of liberty. It is often necessary to provide care in this way.
The DoLS procedure means that the person’s care arrangements and limits to their freedom are not just put in place, but rather they are assessed, applied for a set period of time and reviewed.
If a care home or hospital plans to deprive a person of their liberty, they must get permission. To do this, they must correctly follow legal processes called the Deprivation of Liberty Safeguards (DoLS).
The safeguards include the following four elements:
An assessment of the care being given to the person with dementia must be done by two professionals who are not involved in the care of the person:
- the ‘best interests assessor’ – they must be an approved mental health professional, usually a social worker, nurse, occupational therapist, or psychologist, with the necessary training and experience
- the ‘mental health assessor’ – they must be a medical doctor with experience in mental health.
This assessment is a safeguard as it makes sure that the care being given is in the person’s best interests.
2. A representative
The person who is being cared for should be given a representative. This can be a paid representative or a relative or friend. The assessment will usually identify who would be best for this role.
This person is called the ‘relevant person’s representative’. This person is given certain rights and looks out for the person receiving care.
The representative can be helped by an advocate called an Independent Mental Capacity Advocate.
3. The right to challenge
The deprivation of liberty should be reviewed and checked regularly.
Read an example of DoLS when a person is moving into a care home:
Brenda lives at home with her husband. Since being diagnosed with Alzheimer’s disease, Brenda has found that she needs more care and support at home. As time goes by, and her dementia gets worse, she
becomes unable to make her own decisions about her care and where she will receive that care.
Her husband feels that she now needs more care and support than he can offer and that she may need full-time care in a care home. He arranges for the local authority to assess her care needs, and the social worker agrees that she needs full-time care.
The next step is to arrange the move into a care home, and the social worker explains that there will be a Deprivation of Liberty Safeguards assessment. This is needed as Brenda lacks capacity to make the choice to move into a care home, and so by moving there she may be deprived of her liberty. This is because her care needs mean that she may be under continuous supervision and control by staff, and she will not be allowed to leave the care home.
Two assessors call to assess Brenda and the proposed care she will receive. As part of this process, they speak to her husband about his feelings on the proposed care. They agree that depriving Brenda of her freedom in this way is the right thing to do for her, and so this deprivation of liberty is authorised by the local authority. Brenda then moves to the care home, and her husband is appointed as her representative.
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