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The deprivation of liberty safeguards

The deprivation of liberty safeguards (DOLS) are a range of safeguards intended to protect vulnerable people 18 years old or over, who have a mental disorder and lack capacity to make care and treatment decisions for themselves, whose care or treatment in a hospital or registered care home amounts to (or will amount to) a deprivation of liberty (DOL) under article 5 of the Human Rights Act 1998.

The DOLS do not apply to people detained in hospital under the amended Mental Health Act 1983. However, they do apply to people received into guardianship under the Mental Health Act, or people subject to a community treatment order, as neither of these orders authorise a deprivation of liberty.

The main purpose of these safeguards is to prevent arbitrary deprivation of liberty but also to provide an authorisation framework for situations when it is necessary to deprive someone of their liberty, in order to care for them or treat them in a way that protects them from harm.

Under DOLS, a hospital or registered care home becomes a “managing authority”, with the local authority becoming a ‘supervisory body’. Each has their own set of duties and responsibilities, although some of these are shared.

Managing authorities will have a duty to identify existing or potential DOL and make a referral to the relevant supervisory body. On receipt of an appropriate DOLS referral, the supervisory body will have to commission six different assessments as part of the process of determining whether or not to grant authorisation.

The assessments are:

  • to confirm that the relevant person is 18 or over
  • to establish whether the relevant person has a mental disorder within the meaning of the Mental Health Act 1983
  • to establish whether the relevant person lacks capacity to make decisions in relation to the care or treatment that will deprive them of their liberty
  • to establish, firstly, whether deprivation of liberty is occurring or is going to occur

If deprivation of liberty is occurring or is going to occur, establish:

  • it is in the best interests of the relevant person to be deprived of liberty
  • it is necessary for them to be deprived of liberty in order to prevent harm to themselves
  • deprivation of liberty is a proportionate response to the likelihood of the relevant person suffering harm and the seriousness of that harm

If the care or treatment is likely to continue beyond the duration of the authorisation, application for further authorisation must be made prior to the expiry of the existing one.

If authorisation is refused, the hospital or care home will need to provide the care or treatment in a less restrictive way, which does not amount to a deprivation of liberty.

The deprivation of liberty safeguards will be monitored by the Care Quality Commission as part of their routine inspection regime.

The court of protection will be the final decision maker in situations where there is dispute, or when an appeal has been made.

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