What is a Deprivation of Liberty Safeguards?
What is a DoLS?
DoLS is an acronym which stands for Deprivation of Liberty Safeguards. Unless you have been faced with local authority involvement for yourself, a relative or a loved one, with regards to you care or residence, it is unlikely you will have heard the term.
DoLS is a legal framework which ensures that individuals who lack the mental capacity to consent to their care arrangements, specifically where such arrangements restrict an individual’s freedom, have the arrangements independently assessed to ensure they are in the best interests of the individual concerned.
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 those arrangements.
To authorise a Deprivation of Liberty, two professionals, not involved in the care of the person in question must carry out two separate assessments:
Mental capacity assessment
This must be carried out by a medical doctor with experience in mental health. Any assessment must always start on the assumption the person has the capacity to make the decision in question.
The Mental Capacity Act 2005 (MCA) sets out the two-stage function test of capacity;
Stage 1: is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,
Stage 2: is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision? In order to assess this stage of the test, the assessor must decide if the person can:
- Understand information given to them
- Retain that information for long enough to be able to make the decision
- Weigh up the information available to make the decision
- Communicate their decision.
Best interest assessment
This must be carried out by an approved mental health professional, usually a social worker, nurse, occupational therapist or psychologist with the necessary training and experience. The MCA provides a helpful but non-exhaustive ‘checklist’ that should be followed by a best interest assessor:
- Encouraging the individual to participate in the decision, making all appropriate adjustments to support this
- Identify all relevant circumstances
- Find out the person’s views
- Avoid discrimination
- Assess whether the person might regain capacity at some point in the future
- If the decision concerns life-sustaining treatment then these decisions should not be motivated to bring about the individual’s death or make assumptions as to their quality of life
- Consult all relevant others
- Refer to an appropriate Advocate
- Least restrictive practices should always be adhered to
- Any other factors to consider or assess?
- Weigh up all these factors to conclude what would be in the individual’s Best Interests
What to do if you or a loved one are subject to a DoLS
Depriving someone of any human right, is an important decision and can be an extremely confusing and an emotional time for all involved. If someone is subject to a DoLS, then they have the right to an independent advocate as well as the right to challenge any decision. It is through this challenge that the Court of Protection would become involved to provide judicial oversight.
David Gray Solicitors have a specialised team in Court of Protection: Health and Welfare who can assist in navigating any objections or challenges to DoLS. The team are incredibly sensitive to the vulnerability of those involved with the Court of Protection and are here to help in any way possible. The team represent both people subject to DoLs and their family members. Should you have any questions please contact the team on 0191 232 9547.