Mental Capacity Act Deprivation of Liberty Safeguards (DoLs)
DOLs form a legal framework to safeguard the rights of people who lack capacity to consent to being deprived of their liberty, and who are not detained under the Mental Health Act. The safeguards include a right to appeal. They were introduced to prevent breaches of the European Convention on Human Rights (ECHR). The safeguards were introduced into the Mental Capacity Act (MCA) 2005 via the Mental Health Act 2007.
People who meet the eligibility criteria are detained via a 'standard authorisation'. The 5 principles of the MCA ensure that a vulnerable person should only have their liberty taken away IF:
- it is in their own best interests to protect them from harm
- it is a proportionate response to the likelihood and seriousness of the harm, and
- if there is no less restrictive alternative.
An assessment must take place and the ‘Supervisory Body’ (usually the Local Authority), decides if a person can lawfully be deprived of their liberty. The assessment will help the supervisory body decide if a deprivation of liberty needs to be authorised, and for how long.
Who can be subject to a DOLs authorisation?
The MCA DOLs applies to anyone aged 18 and over:
- Who suffers from a mental disorder such as dementia, a profound learning disability or other neurological conditions (for example as a result of a brain injury), who lacks capacity to give informed consent to the arrangements made for their care and/or treatment.
- Who, following an independent assessment, is considered to require a deprivation of liberty, in their best interests, to protect them from harm.
The safeguards cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000.
What is a deprivation of liberty?
Following the decision of the Supreme Court in March 2014 in Cheshire West, there are two questions to ask:
- Is the person subject to continuous supervision and control?
- Is the person free to leave?
The focus is not on the person's ability to express a desire to leave, but on what those with control over their care arrangements would do if they sought to leave. In all cases, the following is not relevant to the application of the test:
- the person's compliance or lack of objection
- the relative normality of the placement (whatever the comparison made)
- the reason or purpose behind a particular placement.
The following list gives examples of steps taken which involve more than restraint and amount to a deprivation of liberty:
- Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission.
- Staff exercise complete and effective control over the care and movement of a person for a significant period.
- Staff exercise control over assessments, treatment, contacts and residence.
- A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate.
- A request by carers for a person to be discharged to their care is refused.
- The person is unable to maintain social contacts because of restrictions placed on their access to other people.
- The person loses autonomy because they are under continuous supervision and control.
This list is not exclusive.
How can an IMCA provide support?
An IMCA can be involved in supporting and representing people who may be subject to the DoLs. They can:
- be instructed to support an individual who is to be assessed (in response to a request for a standard authorisation), or if there is a concern about a potentially unauthorised deprivation of liberty.
- support individuals who wish to challenge an application for a standard authorisation. This is the case even if an individual has a relevant person’s representative (RPR) helping and supporting them to do this.