Deprivation of Liberty Safeguards
Introduction
The deprivation of liberty safeguards (DOLS) were introduced to provide a legal framework around the deprivation of liberty in response to what is commonly referred to as the Bournewood case, and become law on 1 April 2009 as an amendment to the Mental Capacity Act 2005. The safeguards apply to people in England and Wales who have a mental disorder and lack capacity to consent to the arrangements made for their care or treatment, but for whom receiving care or treatment in circumstances that amount to a deprivation of liberty may be necessary to protect them from harm and appears to be in their best interests. In order to come within the scope of these safeguards, a person must be detained in a hospital or a care home, for the purpose of being given care or treatment. A large number of these people will be those with significant learning disabilities, or older people with dementia or a similar disability, but they can also include those who have certain other neurological conditions (for example as a result of a brain injury).
The safeguards provide for the deprivation of liberty to be made lawful through ‘standard’ and ‘urgent’ authorisation processes. The ‘managing authority’ (that is the relevant care home or hospital) must seek authorisation from a ‘supervisory body’ in order to lawfully deprive someone of their liberty. The supervisory body could be a primary care trust or local authority, and Hampshire will be operating a joint DOLS process with a central administration point for all applications for authorisation. Before giving such an authorisation, the supervisory body must be satisfied that the person has a mental disorder and lacks capacity to decide about their residence or treatment. In deciding whether or not an application is necessary, a managing authority should carefully consider whether any restrictions that are, or will be, needed to provide ongoing care or treatment amount to a deprivation of liberty when looked at together.
The deprivation of liberty safeguards cover:
- How an application for authorisation should be applied for
- How an application for authorisation should be assessed
- The requirements that must be fulfilled for an authorisation to be given
- How an authorisation should be reviewed
- What support and representation must be provided for people who are subject to an authorisation, and
- How people can challenge authorisations
- In their own best interests to protect them from harm
- If it is a proportionate response to the likelihood and seriousness of the harm, and
- If there is no less restrictive alternative
- 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 into their care is refused
- The person is unable to maintain social contacts because of restrictions placed on access to other people
- The person loses autonomy because they are under continuous supervision and control
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