Deprivation of Liberty Safeguards

Legal Context and Framework

The Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) is the cornerstone of the DoLS framework. It sets out the principles and legal mechanisms for assessing capacity, making decisions on behalf of individuals who lack capacity, and safeguarding their rights. The MCA is founded on five fundamental principles:

1. Presumption of Capacity: Every adult has the right to make their own decisions and must be assumed to have capacity unless proven otherwise.
2. Right to Make Unwise Decisions: Individuals have the right to make decisions that others may consider unwise, provided they have the capacity to do so.
3. Best Interests: Any decision made on behalf of someone who lacks capacity must be in their best interests.
4. Least Restrictive Option: Decisions should be made in a way that is the least restrictive of the individual’s rights and freedoms.
5. Support to Make Decisions: Individuals should be given all practicable help before anyone concludes that they cannot make their own decisions.

Human Rights Act 1998

The Human Rights Act 1998 (HRA) is another critical piece of legislation underpinning DoLS. It incorporates the European Convention on Human Rights (ECHR) into UK law, particularly Article 5, which states that everyone has the right to liberty and security of person. Any deprivation of liberty must be lawful, and individuals deprived of their liberty must have access to a speedy review process.

Definition and Scope of Deprivation of Liberty

The term “deprivation of liberty” is not explicitly defined in the MCA but has been clarified through case law, particularly the landmark Cheshire West case in 2014. The Supreme Court, in this case, established the “acid test” for deprivation of liberty, which considers two key factors:

1. Continuous Supervision and Control: The person is under continuous supervision and control.
2. Lack of Freedom to Leave: The person is not free to leave the place where they are being cared for.

If these conditions are met, a person is considered deprived of their liberty, and appropriate safeguards must be applied.

The DoLS Process

The DoLS process involves several key steps and roles to ensure that any deprivation of liberty is necessary, proportionate, and in the best interests of the individual. The main elements include:

Standard and Urgent Authorisations

• Standard Authorisation: This is sought when it is anticipated that a person will need to be deprived of their liberty. The managing authority (care home or hospital) must apply to the supervisory body (local authority) in advance.
• Urgent Authorisation: If a deprivation of liberty needs to commence immediately, an urgent authorisation can be granted by the managing authority, lasting up to seven days (extendable by a further seven days if necessary).

Assessments

A series of six assessments must be conducted to ensure that the deprivation of liberty is lawful and in the individual’s best interests:

1. Age Assessment: Confirms the person is 18 or over.
2. Mental Health Assessment: Determines whether the person has a mental disorder.
3. Mental Capacity Assessment: Establishes whether the person lacks the capacity to consent to the arrangements.
4. Best Interests Assessment: Ensures the deprivation of liberty is necessary and in the person’s best interests.
5. Eligibility Assessment: Checks if the person is subject to any other legal regime that conflicts with DoLS.
6. No Refusals Assessment: This ensures that there are no valid advance decisions or lasting powers of attorney that contradict the proposed deprivation.

Roles and Responsibilities

• Managing Authority: The care home or hospital responsible for applying for authorisations.
• Supervisory Body: Typically the local authority, responsible for authorising and overseeing the deprivation of liberty.
• Best Interests Assessor (BIA): A trained professional who conducts the best interests assessment.
• Independent Mental Capacity Advocate (IMCA): Supports individuals who lack capacity and have no family or friends to represent them.

Practical Implications and Challenges

Implementation and Compliance

Implementing DoLS effectively requires robust processes, trained staff, and clear communication between managing authorities and supervisory bodies. Compliance is essential to protect individuals’ rights and avoid legal challenges. However, there are significant challenges in the practical application of DoLS, including:

• Resource Constraints: Local authorities often face resource limitations, impacting their ability to conduct timely assessments and reviews.
• Complexity of Processes: The DoLS framework is perceived as complex and bureaucratic, leading to difficulties in understanding and applying the safeguards consistently.
• High Volume of Cases: The increasing number of people with dementia and other conditions affecting capacity has led to a high volume of DoLS applications, straining the system.

Impact on Individuals and Families

DoLS has significant implications for individuals and their families. For individuals, it ensures that their deprivation of liberty is justified and regularly reviewed and that they have access to representation and advocacy. For families, it provides a mechanism to challenge decisions and protect their loved ones’ rights. However, the process can be distressing and confusing, necessitating clear communication and professional support.

Reforms and the Liberty Protection Safeguards (LPS)

Recognising the challenges and limitations of the current DoLS framework, the UK government has introduced reforms through the Mental Capacity (Amendment) Act 2019, which establishes the Liberty Protection Safeguards (LPS). The LPS is intended to replace DoLS and address its shortcomings by simplifying processes and extending safeguards to a broader range of settings.

Key Features of LPS

• Wider Applicability: LPS applies to all settings, including domestic settings, and covers individuals aged 16 and over.
• Streamlined Assessments: LPS reduces the number of assessments and allows for greater integration with existing care planning processes.
• Greater Role for Care Homes and Hospitals: Managing authorities have increased responsibilities for conducting and coordinating assessments.
• Enhanced Advocacy and Rights Protection: LPS strengthens advocates’ role and ensures regular authorisation reviews.

Conclusion

“The Deprivation of Liberty Safeguards (DoLS) is an important framework for protecting the rights of individuals who are unable to consent to their care and treatment. However, it faces challenges due to its complexity, resource constraints, and high case volumes. The upcoming transition to the Liberty Protection Safeguards (LPS) aims to simplify processes and extend protections to a wider range of individuals and settings.

As legal professionals at DLS Solicitors, it is essential to stay informed about these developments in order to provide knowledgeable advice and effective representation to clients affected by DoLS and LPS. Upholding the rights and liberties of vulnerable individuals is a fundamental responsibility within our practice, and it requires diligence, compassion, and a thorough understanding of the evolving legal landscape.”