DOLS (deprivation of liberty safeguards) are used to deprive a person of their liberty if they are in a hospital, care home or nursing home. This is because the nature of their care arrangements mean that their freedom needs to be restricted (for example, care staff are always supervising them, the doors to the care home may be locked, and they would be prevented from leaving the hospital or care home).
Even though the care arrangements are to keep them safe and meet their needs, the care package may still amount to a deprivation of their liberty, as every person has the right to liberty under Article 5 of the European Convention on Human Rights. The authorisation provides lawful authority for the restrictions in place that deprive the person of their liberty. The arrangements must be in the best interests of the person at all times, and someone can only be deprived of their liberty if they lack mental capacity to consent to the arrangements. There are two types of DOLS authorisations – urgent and standard.
Urgent and standard authorisations
An urgent authorisation can be granted for a period of up to seven days. The care home or hospital can request the local authority to extend the authorisation for up to a further seven days. Before granting an urgent authorisation, the care home or hospital should try to speak to the family, friends and carers of the person deprived of their liberty.
When granting an urgent authorisation, the care home or hospital must also make a request for a standard authorisation. A standard authorisation can be in place for as short a time as possible and only up to a maximum of 12 months. A series of six assessments must be undertaken to ensure that the requirements are met. These include assessments by a psychiatrist and a social worker / best interests assessor.
A copy of the authorisation must be given to the person deprived of their liberty and their relevant persons representative (RPR), the managing authority (care home/ hospital), every interested person consulted by the best interests assessor and any independent mental capacity advocate (IMCA) involved.
The authorisation must state what it is for, how long it lasts as well as any conditions attached. The authorisation will include it’s start and end date. The duration specified in the authorisation is the maximum time allowed without further assessments and a new authorisation. If a person’s circumstances change before the end of this period this may mean the criteria for authorisation no longer apply and the deprivation of liberty should be reviewed.
At the end of the authorisation period, a new authorisation must be applied for (if required) and the assessments must be repeated. For more information on the DOLS assessment, please click here.
During the time the authorisation is in place, the care provider and local authority should:
- Make regular checks to see if the authorisation is still needed;
- Take steps to review and remove the authorisation when it is no longer needed (the restrictions may be less than when someone initially arrived at the care home as their condition may have improved, or their cognition may have improved to the extent that they now have mental capacity to make their own decisions about their residence and care); and
- Provide the RPR with information about their care and treatment; and
- In the event that the person is objecting to the arrangements, steps should be taken by the RPR to request a review and an application to the Court of Protection may be necessary. If the RPR does not take these steps, the local authority should issue the application and inform all family members with an interest in the person’s welfare.
You may wish to challenge a deprivation of liberty if you think someone is being unlawfully deprived of their liberty when there is no authorisation in place, or where an authorisation is in place but the requirements are not met.
It can be a very distressing time when a loved one is in hospital or needs to move to a residential or nursing home. Should you require any advice or assistance in respect of issues affecting a relative or loved one who is deprived of their liberty, or is undergoing a DOLS assessments, please do not hesitate to contact us on 01616 966 229 and our team of specialist mental capacity and Court of Protection solicitors may be able to assist. Legal aid funding is available subject to eligibility.
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