Legal Eagle: Explanation of Deprivation of Liberty Safeguards
What are Deprivation of Liberty Safeguards (DoLs)?
The Deprivation of Liberty Safeguards were introduced as an amendment to the Mental Capacity Act 2005 and came into force on April 1, 2009.
They are checks to ensure that individuals who lack the capacity to consent to their care arrangements are not being confined in hospitals and care homes unlawfully, and any restriction is necessary, proportionate and in their best interests.
What Constitutes a Deprivation of Liberty?
The Supreme Court in the case of P v Cheshire West & Chester Council; P & Q v Surrey County Council [2014] described the acid test which should be applied to determine whether something constitutes a deprivation of liberty.
Where an individual lacks the capacity to consent to their care arrangements, consideration must be given as to:
1) Whether the person is free to leave the placement
2) Whether the person is subject to continuous supervision and control
If someone is subject to a high level of supervision and is not able to leave the premises permanently, then they are almost certainly being deprived of their liberty.
The Court have held that factors not relevant include: the person's compliance or lack of objection, the reason behind a particular placement and the extent to which their living arrangements are considered normal for people with similar cognitive impairments.
What is the Criteria for the Assessment?
Where someone is identified as being deprived of their liberty, then the care home or hospital, must apply for a DoLs authorisation from the local authority. The local authority must complete an assessment within twenty-one days.
For the DoLs authorisation to be granted, six criteria must be met:
1) You must be aged 18 or over
2) You must suffer from a mental disorder
3) You must lack the capacity to make decisions about your care or treatment
4) The deprivation must be in your best interests, necessary to keep you safe from harm and be a
proportionate response to the likelihood of you suffering harm
5) You must not be eligible or already be subject to detention under the Mental Health Act 1983
6) The authorisation cannot contradict any advance decision you have made, or any decision made by a court-appointed deputy or someone with lasting power of attorney
How long in the Deprivation of Liberty in place?
If a DoLs authorisation is granted, this should last for as little time as possible, and only for a maximum of twelve months. During this time, the care provider should undertake regular reviews to make sure the authorisation is still necessary, and there are no less restrictive alternatives available.
If someone is subject to a DoL, they will be appointed a Relevant Person’s Representative (RPR) whose role is to advocate on their behalf. Where the individual is objecting to their placement, the RPR will be responsible for bringing an application to the Court of Protection to determine if the DoL could be discharged or varied.
Ben Hoare Bell LLP has specialist Court of Protection Solicitors who can help. To speak to a solicitor please contact us on 0191 565 3112 or email [email protected]. Please visit www.benhoarebell.co.uk for further information.