The Deprivation of Liberty Safeguards is an addendum to the Mental Capacity Act 2005.
To meet the criteria of the safeguards a person must:
- Be cared for in a hospital or care home; and
- Be aged 18 or over;
- Have a mental disorder, such as Dementia or a Learning Disability and not be liable for detention under the Mental Health Act 1983
- Lack the capacity to consent to where their care is given
- Need to be deprived of their liberty in their best interests to protect them from harm
The deprivation of a person’s liberty is a very serious matter. That is why the safeguards have been created: to ensure that any decision to deprive someone of their liberty is made following defined processes and in consultation with specific authorities.
The Supreme Court made a landmark judgement on 19th March, 2014 about changes to the meaning of deprivation of liberty following the Cheshire West Court Case. The test of deprivation of liberty has now been revised into a so-called “acid test” by the Supreme Court as follows:
The person is under continuous supervision and control AND is not free to leave and they lack the capacity to consent to these arrangements then they are being deprived of their liberty.
Every element of this must be satisfied i.e.
- Not free to leave.
It is no longer relevant whether the person is compliant or whether there is a lack of objection. The focus is not on the person’s ability to express a desire to leave, but on what those with control over their care arrangements would do if they sought to leave. The purpose of the placement is not relevant and the person should no longer be compared only with another person who has the same level of disability. The concept of “relative normality” as expressed by the Court of Appeal in the Cheshire West case was determined by the Supreme Court as not relevant when deciding whether an individual is being deprived of their liberty.
The test is an objective perspective – regardless of the motivation that lies behind it, or the quality or appropriateness of the care that is being provided.
How to refer if you feel a person is being deprived of their liberty
If you are a Managing Authority (Care Home or Hospital) and think you are already depriving someone of their Liberty you will need to complete Form 1 all pages and submit them to the relevant supervisory body. If you think that you will be depriving someone in the future, for example a new admission that has not yet arrived, complete and submit Form 1 excluding pages 6 and 7.
If you would like further help or guidance – either general or regarding relating to a specific care item – please contact us using the details provided.
If you are a friend or relative of someone you feel is being deprived of their liberty, firstly you would need to raise it with the relevant Managing authority (Hospital or Care Home) and ask them to refer; if they fail to do so please notify the relevant supervisory body in writing. (Standard letter appended for your use)
If you have any questions about the process or are unsure whether to make a referral please do not hesitate to contact the relevant supervisory body, if you don’t know which supervisory body is appropriate please contact us in the first instance.
Forms and Guidance produced by ADASS.
The Law Society has issued comprehensive guidance on the law relating to the deprivation of liberty safeguards.
The guidance was commissioned by the Department of Health and aims to help identify when a deprivation of liberty may be occurring in a number of health and care settings.
Resources, information and support tools can also be found on the Local Government Association.
Changes to the Coroners and Justice Act 2009
From April 2017 coroners will no longer have a duty to undertake an inquest into the death of every person who was subject to an authorisation under the Deprivation of Liberty Safeguards (known as DoLS) under the Mental Capacity Act 2005.
In these cases an inquest will still be required if the person died before Monday 3rd April 2017. However, for any person subject to a DoLS authorisation who dies on the 3rd, or any time after, their death need not be reported to the coroner unless the cause of death is unknown or where there are concerns that the cause of death was unnatural or violent, including where there is any concern about the care given having contributed to the persons death.
Any person with any concerns about how or why someone has come to their death can contact the coroner directly. This will not change where a person subject to a DoLS authorisation. What will change is that the coroner will no longer be duty bound to investigate every death where the deceased had a DoLS in place.