7.3 Deprivation of Liberty Safeguards

1. The Deprivation of Liberty Safeguards

A deprivation of liberty can occur in any care setting and is when a person has their freedom limited in some way.

In England and Wales, the Deprivation of Liberty Safeguards (DoLS) are used to check that actions which limit the liberty of a person. who does not have the capacity to consent to this, are done in the least restrictive way necessary to keep them safe and that it is in their best interests.

DoLS provides a process for a deprivation of liberty to be made legal through either ‘standard’ or ‘urgent’ authorisation processes. These processes are designed to prevent the making of arbitrary decisions to deprive a person of their liberty. They also give people a right to challenge deprivation of liberty authorisations.

2. Identifying a Deprivation of Liberty

It is crucial that all care providers are able to recognise when the care plan proposed might deprive a person of their liberty by applying the acid test (see Section 3, The Acid Test) and then take the required action by applying for an authorisation to the supervisory body / Court of Protection.

Health and social care professionals must also be able to identify a potential deprivation of liberty, and know how to notify the supervisory body of deprivation of liberty which may be unauthorised.

3. The Acid Test

In 2014, a ruling by the Supreme Court (P v Cheshire West and Chester Council and P&Q v Surrey County Council) held that, as well as hospitals and registered care homes, a deprivation of liberty can also occur in domestic / home type settings where the state is responsible for enforcing such arrangements. This may include a placement in a supported living arrangement in the community and in a person’s own home. This is known as a Community DoL or a Judicial DoL.

In the same ruling, the Supreme Court also clarified that there is a deprivation of liberty where the person:

• is under continuous supervision and control (all 3 of these aspects are required); and
• is not free to leave;
• lacks capacity to consent to these arrangements; and
• whose confinement is the responsibility of the State.

This means that if a person who lacks capacity to consent to this is subject to continuous supervision and control and is not free to leave they are deprived of their liberty.

The following are factors are not relevant to determining if there is a deprivation of liberty:

• the person’s compliance or lack of objection;
• the reason or purpose behind a particular placement; and
• the extent to which it enables them to live a relatively normal life for someone with their level of disability.

See also Deprivation of Liberty Safeguards: At a Glance (SCIE) 

4. Practice Guidance

When staff are working with people who may be deprived of their liberty, it is important to consider the following:

• Mental Capacity Act principles: the five principles and specifically “the least restrictive” principle (see Mental Capacity chapter);
• restrictions and restraint: when designing and implementing new care and treatment plans for people who lacking mental capacity, be aware of any restrictions and restraint which are of a degree or intensity that mean the person is being, or is likely to be, deprived of their liberty (following the acid test supplied by the Supreme Court);
• least restrictive alternative: where a potential deprivation of liberty is identified, a full exploration of the alternative ways of providing the care and/ or treatment should be undertaken, in order to identify any less restrictive ways of providing that care which will avoid a deprivation of liberty.

5. Restrictions and Restraint

There is a difference between deprivation of liberty (which is unlawful, unless authorised) and restrictions on a person’s freedom of movement.

Restrictions of movement (if in accordance with the principles and guidance of the Mental Capacity Act (MCA)) can be lawfully carried out in a person’s best interests, in order to prevent harm. This includes use of physical restraint where that is proportionate to the risk of harm to the person and in line with best practice.

Examples of restraint and restrictions include:

• using locks or keypads to prevent a person leaving a specific area;
• administration of certain medication, for example to calm a person;
• requiring a person to be supervised when outside;
• restricting contact with family and friends, including if they could harm the person;
• physical intervention to stop someone from doing something which could harm themselves;
• removing items from a person which could harm them;
• holding a person so they can be given care or treatment;
• using bedrails, wheelchair straps, and splints;
• requiring close supervision / monitoring in the home;
• the person having to stay somewhere they do not want;
• the person having to stay somewhere their family does not want.

It is important that professionals ensure they are implementing least restrictive practice and that they ask themselves ‘Is this person as free as anyone else?’ Professionals need to check if they can reduce restrictions whilst ensuring the person is safe and their needs are being met. Guidance from the LGA and ADASS Promoting less restrictive practice: reducing restrictions tool for practitioners contains examples for care homes on situations they come across on a daily basis and provides advice on how they can reduce restrictions and the blanket support they may have in place.

6. Identifying Deprivation of Liberty: Care Providers

Care providers do not have to be experts about what is and is not a deprivation of liberty, but need to be able to recognise when a person might be deprived of their liberty by applying the acid test, and then take the required action by applying for an authorisation to the supervisory body.

An assessment must be made as to whether the living arrangements made for a person who lacks capacity amount to a deprivation of liberty. If so, the deprivation has to be authorised either by:

• the Deprivation of Liberty Safeguards (for hospitals / care homes); or
• the Court of Protection (for domestic settings such as supported living arrangements. i.e. Judicial or Community DoLs).

Any deprivation must be subject to regular independent checks.

7. Authorising Deprivation of Liberty

7.1 The managing authority

The managing authority manages the care of the adult concerned.

Where a managing authority thinks it needs to deprive someone of their liberty under the acid test (see Section 3, The Acid Test), it has to request the authorisation from the supervisory body. It can do this up to 28 days in advance of when it plans to deprive the adult of their liberty.

7.2 The supervisory body

The supervisory body supervises the process for assessment and signs off the final order.

The local authority where the person is ordinarily resident is the supervisory body for care homes and hospitals (see Ordinary Residence chapter).

Applications to authorise a deprivation of liberty in the community are made to the Court of Protection

7.3 The assessment process: care home providers

The managing authority must fill out a form requesting a standard authorisation (see Department of Health and Social Care). This should be sent to the supervisory body (local authority in this instance), which has 21 days in which to decide whether the adult can be deprived of their liberty.

Before a local authority, as the supervising authority, can grant an authorisation they will arrange the following assessments:

• mental health assessment: to confirm whether the person has an impairment / disturbance in the mind or brain;
• eligibility assessment: to confirm the person’s existing or potential status under the Mental Health Act, and whether it would conflict with a DoLS authorisation;
• mental capacity assessment: carried out by either the Mental Health or Best Interest Assessor to determine the person’s capacity to consent to the care proposed;
• best interests assessment: to confirm whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s best interest. They will also recommend, how long the authorisation should last and who should act as a person’s representative throughout the period of authorisation;
• age assessment: to confirm the person is at least 18 years of age; if a person is between the ages of 16 and 18 years of age, application needs to be made to the Court of Protection if they need to be deprived of their liberty;
• no refusals assessment: to confirm whether there is any valid advance decision which would conflict with the authorisation, or a person with a valid and registered Lasting Power of Attorney with authority over welfare decisions.

An Independent Mental Capacity Advocate may also be appointed during the assessment process if required.

If any of the required conditions are not met, a deprivation of liberty cannot be authorised. This may mean the care home or hospital has to change its care plan.

If all the conditions are met, the supervisory body must authorise the deprivation of liberty, for up to one year. The supervisory body must inform the adult and the managing authority in writing.

The restrictions should cease as soon as the adult no longer requires them; they do not have to be in place for the full period of the authorisation,

7.4 Urgent authorisation: care home providers

If it is believed an adult needs to be deprived of their liberty before the supervisory body can respond to a standard request, the managing authority can use an urgent authorisation. The managing authority can deprive a person of their liberty for up to seven days using an urgent authorisation. This can be extended for a further seven days by the supervisory body, but only if certain criteria are met (see Department of Health and Social Care forms).

Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person. Information they provide may assist in preventing the adult being deprived of their liberty. Efforts to contact family and friends and any discussions had with them should be documented in the adult’s case records.

8. Domestic Settings: Supported Living Arrangements

Applications to authorise a deprivation of liberty in the community are made to the Court of Protection. In most cases the authorisation is a paper-based application that should not require a court hearing.

9. Appointing a Relevant Person’s Representative

Everyone who is subject to a deprivation of liberty authorisation will be appointed a representative (called a Relevant Person’s Representative / RPR). This person will have frequent face to face contact with the person, and represent and support them in all related matters, including requesting a review or applying to the Court of Protection to present a challenge to a DoLS authorisation.

10. Reviews

The care home / hospital / domiciliary or supported living manager must monitor and review the adult’s care needs on a regular basis, and report any change in need or circumstances that would affect the deprivation of liberty authorisation or any attached conditions. A DoLS review must be requested if:

• the adult (who is the ‘relevant person’) no longer meets any qualifying requirements;
• the reasons they meet the qualifying requirements have changed;
• it would be appropriate to add, amend or delete a condition placed on the authorisation due to a change in the adult’s situation;
• the adult or their representative has requested a DoLS review, which they are entitled to do at any time.

The supervisory body where necessary, will arrange for assessors to carry out a review of an authorisation when statutory conditions are met.

11. Alerting to Unlawful Deprivation of Liberty

If a person (professional or otherwise) suspects a person is being deprived of their liberty under the acid test (see Section 3, The Acid Test) and it has not been authorised, they should first discuss it with the care home, hospital ward manager or domiciliary or supported living manager.

If the manager agrees the care plan involves deprivation of liberty, they should be encouraged to make a request for authorisation. Everyone should be satisfied the care plan contains the least restrictive option available to keep the person safe, and it is in the person’s best interests.

If the manager does not agree to make a request for a DoLS authorisation, the concerned person should approach the local authority or Court of Protection to discuss the situation and report the unlawful deprivation.