The deprivation of liberty safeguards (DOLS) were implemented on 1 April 2009, under the Mental Capacity Act 2005. They provide legal protection for vulnerable people who are, or may become, deprived of their liberty within Article 5 of the European Convention on Human Rights (ECHR). Here follows a basic guide to the DOLS:
To be covered by the safeguards, a person must be detained in a hospital or care home for the purpose of receiving care or treatment. The safeguards do not apply to those detained in hospital under the Mental Health Act 1983.
There are 3 main elements to the safeguards:
- to provide the person with a representative;
- to allow a right of challenge to the Court of Protection against the unlawful deprivation of liberty;
- to provide a right for deprivation of liberty to be reviewed and monitored regularly.
The safeguards state that a person may be deprived of their liberty only
- if it is in their own best interests to protect them from harm
- if it is a proportionate response to the likelihood and seriousness of harm; and
- if there is no less restrictive alternative.
The European Court of Human Rights (ECtHR) has drawn an important distinction between the unlawful (unless authorised) deprivation of liberty of an individual and restrictions on the liberty of movement of an individual. The ECtHR clarified that this distinction depends on the particular circumstances of the case, taking into account the specific situation of the individual, and the type, duration, effects and manner of implementation of the measure in question.
HL v United Kingdom ((2005) 40 E.H.R.R. 32) provides a good example of deprivation of liberty.
H had severe autism since birth was unable to consent or object to medical treatment. He had been cared for in Bournewood Hospital for over 30 years. In 1994 he was discharged and lived successfully in the community, supported by paid carers, for 3 years. However, in July 1997 H became extremely agitated whilst attending a day centre and was assessed by a Consultant Psychiatrist at Bournewood Hospital as requiring inpatient treatment. He was readmitted to the hospital but he was not detained under the Mental Health Act 1983 as he did not resist admission. H contended that his detention was unlawful under Art.5.(1)(e) ECHR because the state had not shown that he was of unsound mind.
The key factor was that health care professionals had exercised complete and effective control over H's care and movements from July 22, 1997 when he presented acute behavioural problems to October 29, 1997 when he was compulsorily detained. He was under continuous supervision and control and had not been free to leave. Whether the ward was locked or lockable was not decisive. Accordingly, it was held that he had been "deprived of his liberty" within the meaning of Art.5(1)
For any person who comes within the scope of the deprivation of liberty safeguards, a managing authority has responsibility for applying for authorisation of deprivation of that person's liberty. This could be the registered manager of a care home or the NHS trust or authority that manages a hospital. The authorisation relates only to the issue of deprivation of liberty. It does not give authority to treat people, nor to carry out anything else that would normally require consent.
Once the supervisory body receives an application for authorisation, it has 21 days in which to arrange an assessment to establish whether the qualifying requirements for an authorisation are met for that particular person. The assessments made will relate to age, no refusals, mental capacity, mental health, eligibility and best interests. If an application is made, the managing authority is required to inform the person's family, friends and carers who must be provided with an opportunity to voice their opinions on whether deprivation of liberty is in the best interests of the relevant person.
A deprivation of liberty should last for the shortest period possible and for no longer than the maximum of 12 months. The managing authority is under a duty to monitor cases on an ongoing basis to assess any changes in a person's circumstances.
Once authorisation has been given, the supervisory body will appoint a representative for the person deprived of their liberty, who will maintain contact with the relevant person and represent and support the relevant person in all matters relating to the deprivation of liberty safeguards.
On termination of an authorisation, the managing authority cannot lawfully continue to deprive a person of their liberty. If they feel this is still necessary, however, they can request further standard authorisation to begin immediately after expiry.
If it is believed that a person is being deprived of liberty without authorisation, this should first be drawn to the attention of the managing authority. If the managing authority does not apply for authorisation within a reasonable period, the concerned person can refer the matter to the supervisory body.
The deprivation of liberty safeguards are monitored by the Care Quality Commission.
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