Deprivation of liberty safeguards

Deprivation of liberty safeguards (DOLS) came into force in April 2009 as an amendment to the Mental Capacity Act 2005, in order to safeguard people (who lack capacity to consent to their management) in hospitals and care homes that are deprived of their liberty.¹ Prior to this there was no legal framework for the deprivation of liberty in those people it was deemed necessary ie. for their best interests and in order to protect them from harm.1 This was a response to a European Court of Human Rights ruling that if a patient or resident in a care home is deprived of their liberty to provide necessary care or treatment there must be legal authority to do so with the opportunity of appeal.^{2, 3, 4}

However, defining what exactly entails a deprivation of liberty has been difficult. The ‘acid test’ for determining a deprivation of liberty is that a person with a mental disorder lacking capacity to stay in the care environment must be under continuous supervision and control and not free to leave. The person’s compliance or lack of objection to this deprivation of liberty is irrelevant. The relative normality of the placement is irrelevant as is the reason or purpose behind a particular placement.⁵

Hospital or care home managers should identify those who are at risk of deprivation of liberty and request authorisation from the local authority, which is the Supervisory Body for DOLS. The local authority will commission an assessment of the person’s situation.⁶ The assessment is carried out by a best interests assessor (registered nurse, occupational therapist or psychologist with specialist training) and a mental health assessor (section 12 approved doctor, usually a psychiatrist). If the request for authorisation is accepted then the best interests assessors recommend a period for which the DOLS should be used for and is authorised and implemented by the managing authority, with review as necessary. However, if authorisation is denied then there must be an immediate review and amendment of the care plan.^7-9

Deprivation of liberty safeguards and doctors

It is not the responsibility of a hospital doctor, GP, community geriatrician or psychiatrist to initiate an assessment for DOLS. However, it is incumbent upon on all of us to consider if we feel a person is deprived and, if necessary, notify the ward/care home manager of their legal duty to apply for a DOLS. Every time we visit a patient in a care home and, for example, there is a resident hovering by the door wanting to go home we should raise their legal status, likewise if we are assessing a patient and they are objecting to staying/requiring one-to-one care. One check on the DOLS process is whether the person should be assessed under the Mental Health Act and this can, if applicable, speed up that process.

The benefits for the person include external scrutiny to their care and when a DOLS works well, it changes the care plan to be more person-centred or speeds up discharge from a hospital. However, the numbers of DOLS applications are predicted to rise considerably in some areas. It is mooted that there will be a tenfold increase in the number of DOLS assessments in a given year, with an estimated 112,533 assessments predicted nationwide in 2014/2015.10 Councils anticipate a £45.195 million additional cost in funding.¹⁰

Although this may be logistically difficult, DOLS safeguards people with mental illness who lack capacity. Ensuring they are deprived of their liberty only if it is in their best interests, while also allowing the right of appeal and regular review of their circumstances, should they change. We as clinicians can contribute to protecting such people by identifying those we feel may need safeguarding, ultimately helping to protect their liberty.

References

1.Adult Social Care StatisticsHealth and Social Care Information Centre . Information and Guidance for theDeprivation of Liberty Safeguards (DoLS), under the Mental Capacity Act 2005Return. UK: Health and Social Care Information Centre; 2014.http://www.hscic.gov.uk/media/11581/DoLS-Guidance-2013-14/pdf/Deprivation_of_Liberty_Safeguards_Return_2013-14_Guidance_v3.6.pdf(accessed 8 July 2014).

2.Sheffield City Council. Deprivationof Liberty Safeguards. https://www.sheffield.gov.uk/caresupport/adult/adult-abuse/professionals/mcadols/deprivation-of-liberty.html(accessed 8 July 2014).

3.Health and Social CareInformation Centre. Mental Capacity Act Deprivation of Liberty SafeguardsCollection. http://www.hscic.gov.uk/dols (accessed 08 July 2014).

4.P(by his litigation friend the Official Solicitor) (Appellant) v Cheshire Westand Chester Council and another (Respondents)and  P and Q (by their litigation friend, theOfficial Solicitor) (Appellants) v Surrey County Council (Respondent)[2014]UKSC19

5.Leeds City Council. Deprivationof Liberty Safeguards (DoLS) Frequently Asked Questions.http://www.leedssafeguardingadults.org.uk/documents/dols/dols_faqs_for_web.pdf(accessed 8 July 2014).

6.Cambridgeshire County Council,Cambridge and Peterborough NHS Foundation Trust. MENTAL CAPACITY ACTDEPRIVATION OF LIBERTY SAFEGUARDS MULTI-AGENCY SUMMARY GUIDANCE .Cambridgeshire: Cambridgeshire County Council; 2009.file:///C:/Users/Talhah/Downloads/Mental_capacity_act_and_deprivation_of_liberty_multi_agency_summary_guidance.pdf(accessed 8 July 2014).

7.Cornwall Council, Cornwalland Isles of Scilly NHS. Deprivation of Liberty Safeguards (DOLS).Cornwall: Cornwall Council; no date.http://www.cornwall.gov.uk/media/3640567/Master-DOLS-APPENDIX6.pdf (accessed 8July 2014).

8.Gloucestershire SafeguardingAdults Board. Deprivation of Liberty Safeguards Information Sheet .Gloucestershire: Gloucestershire Safeguarding Adults Board; 2013.http://www.gloucestershire.gov.uk/mobile/CHttpHandler.ashx?id=53696&p=0(accessed 8 July 2010).

9.Department of Health. Deprivationof Liberty Safeguards Funding Factsheet.https://www.gov.uk/government/publications/department-publishes-deprivation-of-liberty-safeguards-funding-factsheet(accessed 8 July 2014).

10.  ADASS. Number of DoLS referrals rise tenfold since SupremeCourt ruling. http://www.adass.org.uk/number-of-dols-referrals-rise-tenfold-since-supreme-court-ruling-jun-14/(accessed 25 Jul 2014).