These are safeguards established by the Mental Capacity Act to ensure that any restrictions on a person’s freedom of movement in a care home or hospital are necessary, proportionate, and in their best interests. Local authorities are responsible for authorising these deprivations of liberty under the DoLS scheme. However, in urgent situations, a hospital or care home can temporarily authorise a deprivation of liberty.
Although the terminology may seem severe, the DoLS scheme aims to safeguard individuals’ freedoms. If someone lacking capacity is deprived of liberty, these safeguards ensure that the arrangements are in their best interests, are the least restrictive option available, and are regularly reviewed. They also grant the person’s representative the right to challenge the arrangements if they believe they are not in the individual’s best interests.
A recent Supreme Court judgement redefined ‘deprivation of liberty’ to include situations where a person lacks capacity to consent, is under constant supervision and control, is not free to leave, and cannot consent to the arrangements. According to this judgement, such individuals are considered deprived of their liberty.
This broader definition means that the care arrangements of many more individuals now fall under the definition of deprivation of liberty and should be properly authorised.
Who do DoLs apply to?
The Deprivation of Liberty Safeguards (DoLS) are applicable to adults aged 18 or over who are residing in a registered care home or hospital, are being deprived of their liberty in that environment, and lack the capacity to consent to such arrangements. Some individuals are exempt from the DoLS scheme if their care is authorised under different legislation, such as the Mental Health Act.
What about incapacitated adults not in registered care homes or hospitals?
If an incapacitated adult’s care arrangement deprives them of liberty in a different setting, like an independent living scheme or their own home, this deprivation of liberty must be authorised by the Court of Protection.
What about young adults aged 16–18?
If a young adult aged 16 to 18 is being deprived of liberty in a care home, hospital, or another setting and lacks the capacity to consent to these arrangements, their deprivation of liberty should be authorised by the Court of Protection. A parent cannot consent to a deprivation of liberty for a child over the age of 16.
A Deprivation of Liberty Safeguards (DoLS) authorization issued by a local authority remains valid for a maximum of 12 months and can be renewed after that through a review. At times, the DoLS assessor may determine that the authorization should be for a shorter duration or subject to specific conditions, such as requiring another application to the Court of Protection regarding the person’s long-term accommodation.
An authorization for a deprivation of liberty granted by the Court of Protection can also last up to 12 months and may be renewed through a court application. Similar to a DoLS authorization, the Court of Protection might opt to authorise the deprivation of liberty for a shorter period based on the circumstances.
What can I do if I don’t agree with the deprivation of liberty?
Before applying for an authorization, either the incapacitated person or their representative can approach the Court of Protection to address any pertinent questions related to the authorization criteria, such as determining the individual’s capacity.
Following the issuance of a DoLS authorization, the incapacitated person’s representative or any interested party can petition the Court of Protection to address relevant matters like the duration or purpose of the authorization. The Court of Protection will decide whether the applicant is eligible to make such an application. Certain individuals have an automatic right to apply to the court without seeking permission.
- The incapacitated person themselves
- The donor of a Lasting Power of Attorney involved in the application, or their attorneys
- A court-appointed deputy acting on behalf of the individual
- Anyone named in an existing court order relevant to the application
- The person designated by the supervisory body as the relevant person’s representative
It is crucial to consider the views of the incapacitated person regarding their accommodation and any imposed restrictions, along with consulting relevant individuals involved in their life.
If you disagree with a decision made by a DoLS assessor, you may have the right to challenge it. If the matter cannot be resolved, you may seek intervention from the Court of Protection to determine the appropriate course of action.
