The ‘Deprivation of Liberty Safeguards’ (DoLS) are an amendment to the Mental Capacity Act 2005 (MCA 2005), which allow for a person to be restraint and/or restricted, if it is deemed to be in the person’s best interests, e.g. to protect their health and safety needs.
Deprivation of Liberty Safeguards apply in hospital and care home settings (for community based settings the Court of Protection can authorise a ‘Deprivation of Liberty in the Community’ order – please see below for more info).
In order to legally deprive a person of their liberty, the care home where the person lives or the hospital where the person is being treated must request what is called a ‘standard authorisation’ from the local authority in most cases.
Since a Supreme Court judgement in 2014, a so called ‘acid test’ has been introduced to determine whether a person, who has been assessed as lacking capacity to consent to their care, support, treatment or accommodation is being deprived of their liberty.
The ‘acid test’ consists of the following two questions:
- 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 the person sought to leave.
Deprivation of Liberty in the Community
People living in their own homes, with their family, attending a day care centre or in supported accommodation (e.g. supported living) can still be deprived of their liberty. Such deprivation of liberty needs to be in the person’s best interests e.g. to protect their health and safety needs.
In such circumstances a ‘Deprivation of Liberty in the Community’ order is required and can only be granted by the Court of Protection, following an application made by the local authority.
The following requirements will need to be met:
- The person has been assessed as lacking the mental capacity to consent to their care, support and accommodation arrangements
- The person is subject to continuous supervision and control
- The person is not free to leave
Once it has been established that the person is being ‘deprived of their liberty’, the local authority’s social care department will need to apply to the Court of Protection, to request for a ‘Deprivation of Liberty in the Community’ order to be granted.
Please note: With the introduction of the Mental Capacity (Amendment) Act 2019 the process will change. The ‘Liberty Protection Safeguards’ were introduced in the Mental Capacity (Amendment) Act 2019 and will replace the current processes for ‘Deprivation of Liberty Safeguards’ and ‘Deprivation of Liberty in the Community’.
The target date for implementation has been postponed due to the Covid-19 pandemic and is currently anticipated to be April 2022.