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You are here: Home Page > Health and Social Care > Mental Capacity Act (MCA) > Deprivation of Liberty (DoLS)

Deprivation of Liberty Safeguards (DoLS)

The Mental Health Act 2007 introduced the Deprivation of Liberty Safeguards into the Mental Capacity Act 2005. The safeguards are a statutory obligation from April 1 2009.

 

What is Deprivation of Liberty?

Since 2009, care homes and hospitals have had to seek authorisation from their Local Authority if they need to deprive an individual who lacks capacity of their liberty as part of their care and/or treatment.  The safeguards are designed to protect the interests of an extremely vulnerable group of individuals and to:

  • Ensure people can be given the care they need in the least restrictive way
  • Prevent arbitrary decisions that deprive vulnerable people of their liberty
  • Provide people with rights of challenge against unlawful detention

 

On 19 March 2014, the Supreme Court handed down its judgment in the case of ‘P v Cheshire West and Chester Council and another’ and “P and Q v Surrey County Council”. The cases were brought to the Supreme Court by the Official Solicitors for P and P & Q. It is the first Supreme Court ruling on the meaning of Deprivation of liberty and overturns previous rulings by the Court of Appeal.

 

The judgment is significant in the determination of whether arrangements made for the care and/or treatment of an individual lacking capacity to consent to those arrangements amount to a deprivation of liberty. The Supreme Court clarified that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights (ECHR)in the following circumstances:

  • The person lacks the capacity to consent to their care arrangements;
  • they are under continuous supervision and control;
  • they are not free to leave the place they are in; and
  • their confinement is the responsibility of the state.

 

The Supreme Court also determined that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This could include a placement in a supported living arrangement in the community, placements through Shared Lives Schemes and foster placements for young people aged 16-18years. Where there is, or is likely to be, a deprivation of liberty in such placements this must be authorised by the Court of Protection.

 

The effect of this change in test is that a much greater number of people in care are now deprived of their liberty and by law must now be assessed under the DoLS procedure. 

 

Related documents

DOL Code of Practice

Case examples

Health and Social Care Act 2012

The Deprivation of Liberty Safeguards - online e-learning

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