Deprivation of Liberty Safeguards (DoLS)

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Introduction

The deprivation of liberty safeguards (DoLS) are designed to ensure that patients are kept safe when they cannot make their own decisions.1

This article will summarise the background of the safeguards (including relevant legislation) and the process of arranging a DoLS assessment. More information is available from the Department of Health and Social Care.Β 

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Background

Before discussing DoLS assessments, it is important to understand the relevant background.Β 

Deprivation of liberty is related to human rights. Article 5 of the Human Rights Act states that a person should not have interference by the state in a person’s freedom (this is known as the right to liberty).

The right to liberty is known as a qualified right, meaning that there are circumstances where the state can take this right away. For example, incarceration, detention under the MHA, or placing someone in quarantine.Β 

There is another reason that liberty can be deprived in patients, and that is when three factors are present:

  • The patient lacks mental capacity or hasn’t consented to an aspect of their care (this is subjective)
  • The patient is under continuous supervision and control in a restricted space and is not free to leave this care (this is objective)
  • The state participates in the patient’s care (essentially, this means the NHS)

Underpinning these three basic elements is that the patient does not have the capacity to make a decision regarding their care. This is the first β€œassessment” performed in a care home or a hospital. It identifies these elements and identifies that the patient lacks capacity and that the decision is in their best interest. Using an example patient, we will put this into context further down in the article, as the different assessments can be confusing.

These three baseline factors must all be present for a person to be deprived of their liberty by the state via an independent legal process. This legal process is essential, so the person can challenge the state if desired through the court.2,3

Why does this happen?

Some people may lack the capacity to consent to a particular treatment that will protect them from harm. If this treatment or care involves depriving them of their liberty in a hospital or a care home, there are safeguards in place to ensure that their care is in their best interests.

Every effort should be made to avoid depriving a patient of their liberty. Depriving a patient of their liberty should only happen when it is in their best interest to protect them from harm if it is a proportionate response to the likelihood of harm and when there is no less restrictive alternative (there are overlaps with the MCA).

Bournewood case

HL was a 49-year-old autistic man. He had lived in Bournewood Hospital for 32 years, and in 1994 was discharged under the care of a couple under a resettlement scheme.

He attended a day centre via provided transport. One day, the transport took an alternative route. This made HL agitated, and the transport decided to take HL back to Bournewood Hospital for his safety.

It was determined that HL lacked capacity for his care and treatment decisions. However, he was not detainable under the Mental Health Act. The clinicians involved detained HL, citing that it was in his best interest to justify HL’s detention.

The couple that HL had been resettled with wanted HL home, but there was no place to challenge the clinical decision. The couple felt that HL was being deprived of his liberty and were very concerned. They took the case to court and eventually to the European Court of Human Rights.

The courts decided that HL was unlawfully deprived of his liberty. There was a gap in the provision to protect the liberty of a person who lacks the capacity to consent to their care arrangements.

Therefore the Deprivation of Liberty Safeguards was brought in, starting in 2007.


Deprivation of Liberty Safeguards

Since 2007 the process to authorise the deprivation of liberty has been delegated by the courts to a local authority under the deprivation of liberty safeguards (known as DoLS).

Essentially the DoLS is a β€œdue process” to authorise a deprivation of liberty. It applies to people aged 18 and over.

DoLS are administered by a local authority (may be known as a supervisory body). Hospitals and registered care homes (known as managing authorities) will notify the local authority of any deprivation of liberty occurring within their premises.

A local authority is an organisation responsible for all the public facilities in one area. They are mostly funded publicly through the government and the local council.

The supervisory body performs three main assessments:

  • Mental disorder: undertaken by a Section 12 registered doctor
  • Mental capacity
  • Best interests: undertaken by a qualified best interest assessor (this is a nurse, social worker, psychologist, or occupational therapist who has undertaken additional training)

There are also assessments regarding the patient’s age, no refusals, and eligibility (for example, the patient is not under a section of the Mental Health Act).

These assessments are then forwarded to an authorised signatory in the local authority for verification and sign-off.

On a medical ward, this may follow a simpler framework that essentially summarises what we have discussed so far into two steps:

  • Identifying that the patient lacks the capacity to make a decision regarding their care
  • Identifying that the decision to receive care is in the patient’s best interests and is the least restrictive option

DoLS process

Say that we’ve got a hypothetical patient (B) who requires a DoLS assessment during their time in an NHS hospital. This is how the process will look like:

  1. Hospital staff identify B as someone at risk of deprivation of liberty and request authorisation from their supervisory body
  2. Assessments are commissioned by the supervisory body (including age, mental health, mental capacity, best interests, eligibility, and no refusals)
  3. At this point, all of B’s assessments have concluded that they are authorised to have their liberty deprived and will follow the DoLS pathway
  4. The best interest assessor can recommend a period of time for which B’s liberty should be deprived, and they will recommend a person to be appointed as B’s representative/advocate (to make a decision if B is unable to do so)
  5. The authorisation is given, and a representative is appointed; the managing authority implements this authorisation

The managing authority, B, or B’s representative can request a review. DoLS should not be extended solely because a patient’s discharge date may be far away in the future.

How long do DoLS last?

This will depend on the context of the patient and the form that has been filled in.

An urgent DoLS authorisation will last one week and can be repeated a maximum of once more (two weeks total). This is done whilst standard authorisation is obtained, which can take time.

Example forms

Example DoLS forms are available from the Department of Health and the Association of Directors of Adult Social Services in England – and different forms will be used depending on the circumstance of the person whose liberty is being deprived.


Summary

In summary, DoLS are safeguards that protect those deprived of their liberty. They involve an assessment to see if they are appropriate for the patient. If this assessment shows that the patient requires deprivation of their liberty to receive appropriate care, they will ensure that their care is in their best interests.


Reviewer

Dr Dilani Perera

Consultant in Older Person’s Medicine

James Cook University Hospital


Editor

Dr Chris Jefferies


References

  1. Mughal, A.F., Richards, S. Deprivation of Liberty Safeguards (DoLS) Handbook. 2nd Book Wise Publications Ltd. 2022.
  2. Deprivation of Liberty Safeguards: Code of Practice. Ministry of Justice. The Stationery Office. 2008. Available from: [LINK]
  3. Social Care Institute for Excellence. Deprivation of Liberty Safeguards (DoLS) at a glance. 2022. Available from: [LINK]

 

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