Deprivation of Liberty Safeguards are put in place to protect a person’s human rights. They make sure that professionals follow a process, set out in law, to make sure that any restrictions on your liberty are in your best interests.
What is Deprivation of Liberty?
You are ‘deprived of their liberty’, in the health and social care context, when:
- You are unable to make a decision about where you live and care you need, so a best interests decision about residence and care is made for you.
- In that placement, you are under continuous supervision and control and you not free to leave (in the sense of going to live somewhere else). Cheshire West, Supreme Court, 2014.
- The arrangements are is in some way imputable to the state (ie the care or residence arrangements are the responsibility of a public body such as the NHS or a local authority, or they are aware of it).
The right not to be deprived of liberty without due process comes from the European Convention on Human Rights, which is incorporated into domestic law by the Human Rights Act 1998. This says no-one’s liberty can be taken away without following a due legal process, and that they must have a legal mechanism available to challenge any deprivation of their liberty.
The Department of Health has written an easy read guide called Deprivation of Liberty.
What are Deprivation of Liberty Safeguards (DoLS)?
Deprivation of Liberty Safeguards (or DoLS) are put in place to protect a person’s human rights. They make sure that professionals follow a process, set out in law, to make sure that any restrictions on your ‘liberty’ are in your ‘best interests’. These ‘safeguards’ include:
- a ‘Relevant Person’s Representative’ (also called an RPR): this is a family member, friend or paid advocate who will visit you regularly and check that you are happy with where you live and the support you receive,
- A right to ‘challenge’ the deprivation of your liberty in the Court of Protection.
These ‘safeguards’ or supports make sure everything is clear and as fair as possible.
Deprivation of Liberty Safeguards (DoLS) only applies in care homes and hospitals, and only for people over 18 years. For any other setting, for example in supported living, or in a family home, or anyone under 18, any deprivation of liberty can only be authorised by the court, to meet the person’s rights for due process and scrutiny.
Who is involved in a Deprivation of Liberty Safeguards (DoLS) Process?
If the person is in a care home or hospital, then the care home or hospital need to contact the local authority who funds that person’s care or oversees the care home.
If the person who meets the criteria above, lives in their own home, tenancy, or supported living, then a public body such as the local authority, will need to apply to the Court of Protection for an authorisation.
In care homes or hospitals - an assessment process should be undertaken to check that the care arrangements in place are required and proportionate in keeping the person ‘safe’, and are in the person’s ‘best interests’. A person is then provided with ‘safeguards’ once the process has been completed. These include:
- A Relevant Person’s Representative (see below)
- A right to challenge or ‘appeal’ the arrangements in the ‘Court of Protection’
- A right to request support from a paid advocate
- A right to request a review of the authorisation
The process to ‘authorise’ a Deprivation of Liberty
A care home or hospital is known as the ‘managing authority’. They are required to identify if someone meets the criteria above, and let the local authority (Supervisory Body) know.
Once a Local Authority receives a referral they need to arrange for:
- A ‘Mental Health Assessor’ (MHA) to complete an assessment to check whether the person has a ‘mental disorder’ defined in the Mental Health Act, and make sure that the person is not already ‘detained’ using the Mental Health Act instead of using the Mental Capacity Act and Deprivation of Liberty Safeguards. A Mental Health Assessor may be a GP or psychiatrist who has been given the relevant training to complete these assessments.
- A ‘Best Interests Assessor’ (BIA) to look at whether the person lacks capacity to make a decision about the arrangements in place in the care home or hospital. A BIA is usually a Social Worker, Occupational Therapist or Nurse who has received the relevant training to complete the assessments.
The BIA will also check:
- Whether the arrangements are in the person’s best interests, whether the arrangements are a ‘proportionate’ response to the risks if the person was not supported this way.
- Whether there is someone who holds Lasting Power of Attorney for Health and Welfare and check whether they agree to the Deprivation of Liberty (called the ‘no refusals assessment).
- Whether any ‘less restrictive’ options have been explored. This is to ensure restrictions do not negatively impact on a person’s Human Rights.
- What a person’s wishes and feelings are, about the arrangements in place and also speak to those involved in a person’s care and are important to the person, to gain their views on the impact of the arrangements on the person.
The BIA will speak to the person, to identify a ‘Relevant Person’s Representative’ (see below). If they are unable to recommend someone, the BIA can make that recommendation on their behalf. This could be a family member or relative, or a paid advocate.
Relevant Person’s Representative
In general, a Relevant Person’s Representative (RPR) is a friend or family member who will ensure that the rights of a person are protected during a Deprivation of Liberty Safeguards (DoLS) process. Where no friend or family member is willing or eligible, a paid representative will be appointed from an advocacy agency.
There are rules guiding who can be an Relevant Person’s Representative (RPR). You must be:
- 18 years of age or over
- Able to keep in contact with the relevant person
- Willing to be appointed.
You must not be:
- financially interested in the hospital or care home where the relevant person is being deprived of their liberty, or be a relative of a person who has a financial interest
- employed by, or providing services to, the care home where the person lives
- employed by the hospital where the person lives in a role related to their treatment or care
- employed to work in the local authority in a role that related to the person’s case.
You must be able to:
- Act in a person’s ‘best interests’ at all times
- Request a review of the Deprivation of Liberty Safeguards (DoLS) authorisation when required
- Support the person to take an ‘objection’ to the Court of Protection.
If you think that you may not be eligible to act as the Relevant Person’s Representative (RPR) for any reason, you must contact the supervisory body immediately.
What should happen if a person is not happy with the support they receive or where they live, when they have a Deprivation of Liberty Safeguards authorisation in place?
The Court of Protection has looked at cases where a person is believed to be ‘objecting’ (not happy with their care or where they live) to the arrangements in place, and given the following advice to determine whether someone is objecting:
A person may verbally or physically (through their behaviour) express an ‘objection’ to the care they receive or the place they live. A case in the Court of Protection recommended considering the following, if you are an RPR and want to determine whether a person is objecting:
- Whether there are possible reasons for the person’s behaviour,
- whether the person is being medicated for depression or being sedated,
- Whether the person actively tries to leave the care home,
- Whether the person takes preparatory steps to leave, e.g. packing bags,
- The person’s ‘demeanour’ and relationship with staff,
- Whether there are any records of challenging behaviour and the triggers for such behaviour.
- Whether the person’s behaviour is a response to particular aspects of the care arrangements or to the entirety of those arrangements.
The significance of this is that such an objection ought to lead to a Deprivation of Liberty Safeguards (DoLS) authorisation being challenged on the person’s behalf in the Court of Protection.
If you are an Relevant Person’s Representative (RPR) and unsure whether the person you support is objecting, or not sure how to action the objection, please contact the Deprivation of Liberty Safeguards (DoLS) Team. Call 01609 536829 , or email email@example.com.
Deprivation of Liberty Safeguards forms
If a person is suspected to be ‘deprived of their liberty’ in a care home or hospital, the care home or hospital must complete the following forms to request an assessment:
- Form 1: Request for an urgent and standard authorisation (care home or hospital uses this form)
- Form 2: Request for a renewal of a standard authorisation (care home or hospital uses this form)
Once the Deprivation of Liberty Safeguards (or DoLS) team have accepted a referral they will arrange for the following forms to be completed:
- Form 3: Mental Capacity/Best Interests Assessment (A Best Interests Assessor uses this form)
- Form 4: Mental Disorder/Eligibility/Mental Capacity Assessment (A Mental Health Assessor uses this form)
- Form 5: Authorisation granted (When the DoLS process is complete, this form is completed)
- Form 6: Authorisation not granted (When the DoLS process is stopped/not granted)
If any changes are required to a Deprivation of Liberty Safeguards (or DoLS) authorisation that is already in place, the care home or hospital can complete one of the following forms:
- Form 7: Suspension of a Standard Authorisation (Used by a care home if a person is detained under the Mental Health Act)
- Form 8: Termination of a representative (Change of Relevant Person’s Representative)
- Form 9: Standard authorisation ceased (Completed if the authorisation is ended)
- Form 10: Review request (If a person’s needs or arrangements have changed or review is needed)