Deprivation of liberty safeguards (DOLS) are used to deprive a person of their liberty if they are in a hospital, care home or nursing home. The DOLS assessment makes sure that the care being given to a person who lacks capacity is in their best interests, and the restrictions are the least restrictive of their freedom in order to keep them safe. If a person is living in another residential setting such as supported living accommodation, there is a different method for having any deprivation of liberty authorised.
The assessments should be carried out by at least two professionals and neither professional should be involved in that person’s care or in making any other decisions about it. Usually the care provider will ask the local authority to complete the DOLS assessments. Some of the assessments will be done by a psychiatrist, and some will be done by a best interests assessor.
Before the DOLS is authorised, six assessments need to be completed.
The six assessments that need to be completed are:
1. Age – To make sure that the person subject to the assessment is aged 18 or over.
2. Mental health – To confirm that the person has been diagnosed with a ‘mental disorder’ within the meaning of the Mental Health Act 1983.
3. Mental capacity assessment– To see whether a person has the mental capacity to decide where they should live and the care they should receive. If a person has capacity, they cannot be lawfully deprived of their liberty and the authorisation procedure should not go ahead, as they are able to consent to the care package themselves.
4. Best interests – To see whether a person is being, or is going to be, deprived of their liberty and whether it is in their best interests. The assessor should take into account the person’s past wishes, values and the views of any friends or family who have an interest in that person’s welfare e.g. have they previously expressed any preferences of what care they would want if they lost mental capacity to make the decision in future after being diagnosed with a mental impairment (such as dementia).
5. Eligibility – To confirm the person is not detained under the Mental Health Act 1983 or subject to a requirement that would conflict with the DOLS.
6. No refusals – To ensure that the deprivation of liberty does not conflict with any advance decision the person has made, or the decision of any attorney or deputy appointed by the Court of Protection.
Sometimes family members do not agree that it is in the best interests of their loved one to be deprived of their liberty, or their loved one may be objecting to, or really unhappy at the care home or placement and in these instances they may be able to challenge the deprivation of liberty authorisation through the Court of Protection, who can revoke or vary an existing DOLS authorisation.
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 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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