The Law Society has issued comprehensive guidance on the law relating to the deprivation of liberty safeguards.
The safeguards aim to ensure that those who lack capacity and are residing in care home, hospital and supported living environments are not subject to overly restrictive measures in their day-to-day lives.
The guidance was commissioned by the Department of Health and aims to help solicitors and frontline health and social care professionals identify when a deprivation of liberty may be occurring in a number of health and care settings.
It uses case scenarios to explain the law following the landmark judgment of the Supreme Court in the case of Cheshire West (2014).
The complete guidance is available via the link below. You can also download individual chapters relating to specific care settings.
Quick reference sheets also highlight relevant liberty restricting factors and key questions for practitioners relating to each individual setting.
http://www.lawsociety.org.uk/support-services/advice/articles/deprivation-of-liberty/
Revised DoLS
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 Supreme Court has now confirmed that to determine whether a person is objectively deprived of their liberty there are two key questions to ask, which they describe as the 'acid test':
- Is the person subject to continuous supervision and control?
(All three aspects are necessary.)
and
- Is the person free to leave?
(The person may not be saying this or acting on it but the issue is about how staff would react if the person did try to leave.)
This now means that if a person is subject both to continuous supervision and control and not free to leave they are deprived of their liberty.
The following factors are no longer relevant to this:
- the person's compliance or lack of objection;
- the relative normality of the placement and
- the reason or purpose behind a particular placement.
The judgment is significant in determining 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.
It is important to remember that the Safeguards are there to protect very vulnerable people from arbitrary decision making and ensure that they have a voice.
What is it?
The Deprivation of Liberty Safeguards (DoLS) provide legal protection for vulnerable people in hospital or a care home, whether placed under public or private arrangements. They are part of the Mental Capacity Act (MCA).
The MCA DoLS apply to anyone:
- aged 18 and over.
- who suffers from a mental disorder or disability of the mind - such as dementia or a profound learning disability.
- who lacks the capacity to consent to the arrangements made for their care or treatment.
- for whom receiving care or treatment in circumstances that amount to a deprivation of liberty may be necessary to protect them from harm.
People who lack mental capacity to make decisions in hospitals and care homes are now protected by the Deprivation of Liberty Safeguards (DoLS). A section has been added to the Mental Capacity Act which provides a proper legal process and suitable safeguards in circumstances where deprivation of liberty is an unavoidable necessity in the best interests of a person who lacks capacity to consent to their care and treatment. These safeguards were originally known by the name of the hospital involved in a landmark case (Bournewood).
A Joint Supervisory Body (PCT & Local Authority) has been set up locally according to Department of Health guidance, and is responsible for assessing such situations and authorising or refusing admissions which would deprive someone of their liberty.
S21a Challenges - When to issue court proceedings
When to bring court proceedings to challenge a DoLS (PDF, 67 KB)
The DoLS Service
The DoLS Service is a dedicated team of staff that co-ordinate and commission the DoLS assessment and review process on behalf of Gloucestershire County Council and NHS Gloucestershire.
For advice and guidance on any aspect of the Deprivation of Liberty Safeguards, please contact the DoLS Service by emailing dolsservice@gloucestershire.gov.uk.
