Deprivation of liberty safeguards (DoLS) explained — and the move to liberty protection safeguards

Have you ever wondered how to protect a relative’s rights when they can no longer make their own care decisions? Seeing a family member under strict supervision is difficult. However, understanding the legal framework ensures their freedom is restricted only when absolutely necessary. In the United Kingdom, these situations are governed by the Deprivation of Liberty Safeguards (DoLS). Whether you are navigating the assessment process or challenging an authorisation, clear guidance and understanding legal aid in the UK are essential. You can find a specialist healthcare solicitor to help you manage the next steps.

Key takeaway: What are the Deprivation of Liberty Safeguards?

The Deprivation of Liberty Safeguards provide legal protection for adults lacking mental capacity. They ensure that restricting freedom in a care home or hospital is necessary, proportionate, and lawful.

What is deprivation of liberty safeguards?

The Deprivation of Liberty Safeguards (DoLS) protect individuals who lack the capacity to consent to their care.

The framework originated from key legal foundations:

• Human Rights: Article 5 of the European Convention on Human Rights guarantees the right to liberty.
• The Bournewood Judgment: This landmark case involved an autistic man unlawfully detained in a hospital, prompting the creation of DoLS to prevent arbitrary detention.

The safeguards ensure that vulnerable people, such as those with dementia, learning disabilities, or brain injuries, are restricted only when:

• It is necessary to prevent harm.
• It is in their best interests.
• No less restrictive alternative exists.

When is a DoLS authorisation required?

A Deprivation of Liberty Safeguards (DoLS) authorisation is legally required when a person is under continuous supervision and control, and is not free to leave the facility.

The core criteria for an authorisation include:

• The individual must be aged 18 or over.
• The individual must lack the mental capacity to consent to their specific care arrangements.
• The restrictions typically occur when a person requires life-sustaining treatment or long-term care in a hospital or registered care home.

The application process follows a specific legal structure:

• The Managing Authority: The hospital or care home is responsible for identifying the restriction and applying for the authorisation.
• The Supervisory Body: The local authority reviews the application and determines whether to grant the standard authorisation.
• Urgent Authorisations: In unforeseen or sudden situations, the managing authority can grant itself an urgent authorisation for up to seven days while the standard application is processed.

The DoLS assessment process explained

Before a standard authorisation can be granted, the supervisory body must commission six assessments to confirm that all qualifying requirements are met. This process must be completed within 21 days of the request for a standard authorisation.

The six required assessments are:

• Age assessment: Confirms that the individual is 18 years of age or older.
• No refusals assessment: Ensures the proposed care does not conflict with a valid advance decision to refuse treatment or a decision by a legally appointed deputy.
• Mental capacity assessment: Confirms that the person lacks the capacity to decide whether they should be accommodated in that specific facility.
• Mental health assessment: Verifies that the individual has a diagnosed mental disorder under the Mental Health Act 1983.
• Eligibility assessment: Checks that the person is not already detained under the Mental Health Act 1983 in a way that conflicts with DoLS.
• Best interests assessment: Determines whether the deprivation of liberty is necessary to prevent harm, is a proportionate response, and is genuinely in the best interests of the person.

Challenging a DoLS authorisation in the Court of Protection

Families often worry when a relative is placed under a standard authorisation against their perceived wishes. The law provides a strict mechanism to challenge these decisions under section 21A of the Mental Capacity Act 2005.

The framework for challenging an authorisation involves the following elements:

• Relevant Person’s Representative (RPR): Once an authorisation is in place, the supervisory body must appoint an RPR to maintain contact with the individual and represent their interests.
• Court of Protection: If the individual or their representative believes that the person possesses mental capacity, or that the placement is not in their best interests, they have an automatic right to apply to this court.
• Court Powers: The Court of Protection reviews the lawfulness of the deprivation of liberty. It can vary the conditions, change the duration, or terminate the authorisation completely if the restrictions are unlawful or disproportionate.

Case Example

Consider the case of Jo, a 29-year-old who sustained severe brain damage in a road traffic collision. Initially, a standard authorisation was granted to prevent her from leaving her care home. As Jo made significant progress in her rehabilitation, her representative requested a review. Through the involvement of a speech and language therapist and a best interests assessor, the authorities determined that although she still lacked capacity, the deprivation of liberty was no longer necessary due to the reduced risks. The authorisation was terminated, and a new care plan was established to support her towards independent living.

The delayed Liberty Protection Safeguards reform

The government introduced the Mental Capacity (Amendment) Act 2019 to create the Liberty Protection Safeguards (LPS), a new framework designed to replace the Deprivation of Liberty Safeguards (DoLS). However, implementation of the LPS has been repeatedly delayed, and DoLS remain the current system in England and Wales.

The proposed LPS framework would introduce several significant changes:

• Age extension: safeguards would apply to people aged 16 and over.
• Broader settings: authorisations would apply across different care settings, including supported living and domestic arrangements.
• Streamlined assessments: the process would focus on three key conditions: capacity, mental disorder, and whether the arrangements are necessary and proportionate.
• Responsible bodies: responsibility would move from the DoLS supervisory body system towards organisations responsible for arranging care and treatment.

Despite the planned reforms, implementation has been delayed due to concerns about readiness, resources, and pressures on the health and social care system. The existing DoLS framework therefore remains in operation.

FAQs

Who does deprivation of liberty safeguards apply to?

The deprivation of liberty safeguards apply to individuals in England and Wales who are aged 18 and over, who suffer from a mental disorder (such as dementia or severe learning disabilities), and lack the mental capacity to consent to the arrangements made for their care or treatment in a hospital or a registered care home.

Who grants urgent authorisation for deprivation of liberty safeguards?

An urgent authorisation is granted by the “managing authority” itself. This means the hospital or the care home where the person is residing can authorise the deprivation of liberty for an initial period of up to seven days if the situation is an emergency, while they simultaneously apply to the supervisory body for a standard authorisation.

What are the deprivation of liberty safeguards?

They are a legal framework under the Mental Capacity Act 2005 designed to ensure that people who lack mental capacity are not arbitrarily deprived of their freedom. They mandate a rigorous assessment process to guarantee that any restriction of liberty in a care setting is strictly necessary to prevent harm and is genuinely in the individual’s best interests.

Depriving a vulnerable person of their liberty is a significant legal and ethical decision that must never be taken lightly. The Deprivation of Liberty Safeguards (DoLS) exist to ensure that any deprivation of liberty is necessary, proportionate, in the person’s best interests, and subject to appropriate safeguards and review. Although the introduction of the Liberty Protection Safeguards (LPS) was intended to replace the DoLS system, implementation has been repeatedly delayed. The current DoLS framework therefore remains in place and continues to provide legal protections for vulnerable people today. If you believe a loved one has been unlawfully deprived of their liberty in a care setting, there are legal routes available to challenge the decision, including applications to the Court of Protection, helping to protect the person’s rights and ensure that any restrictions are lawful and justified.

This guide provides general information only and does not constitute legal advice.

KEY TAKEAWAYS:

• A standard authorisation requires six rigorous assessments to ensure the restriction is necessary and in the person’s best interests.
• Families can challenge a deprivation of liberty in the Court of Protection under section 21A of the Mental Capacity Act 2005.
• The transition to the Liberty Protection Safeguards has been delayed, with public consultations having taken place in 2022 and the current DoLS framework remaining fully in force.