Liberty means being free to do the things you want to do and live where you want to live.
Deprivation of liberty means taking someone’s freedom away. Deprivation of liberty could take place anywhere – in a care home or hospital, but also in a person’s own home.
A recent Supreme Court judgement decided that someone is deprived of their liberty if they are both ‘under continuous supervision and control and not free to leave’.
Someone else may think that they need to take a person’s freedom away to give them the care or treatment they need. If someone is able to make an informed choice about this and they have mental capacity, it is their right to say no.
If a person is not able to make an informed choice and they lack mental capacity, the law says that whoever is looking after them cannot take their freedom away without independent checks that this is the best thing for them. This law is set out in the Mental Health Act and the Mental Capacity Act.
Deprivation of liberty in a care home or hospital
The Mental Capacity Act Deprivation of Liberty Safeguards (DoLS) were introduced into the Mental Capacity Act in 2007.
The safeguards apply to anyone who:
- is aged 18 and over
- is accommodated in a care home or hospital registered with the Care Quality Commission
- suffers from a mental disorder or disability – such as dementia or a learning disability
- does not have the capacity to give informed consent to the arrangements made for their care and treatment
- is not able to comply with those arrangements
and depriving them of their liberty is considered, after an independent assessment, to be necessary in their best interests to protect them from harm.
The safeguards are designed to protect the interests of an extremely vulnerable group of service users and to:
- ensure people can be given the care they need in the least restrictive way
- prevent arbitrary decisions which deprive vulnerable people of their liberty
- provide safeguards for vulnerable people
- provide them with rights of challenge against unlawful detention
- avoid unnecessary bureaucracy
The Department of Health has produced the Mental Capacity Act 2005 Deprivation of Liberty Safeguards – A guide for family, friends and unpaid carers.
Deprivation of liberty for people living in their own home or supported living accommodation
If someone is deprived of their liberty in somewhere other than a care home or hospital (for example, in their own home) this situation is not covered by the Deprivation of Liberty Safeguards and needs to be authorised by the Court of Protection.
If you are concerned that somebody is being deprived of their liberty and they don’t live in a care home or hospital then you can contact Care Direct for information and advice on 0345 155 1007 or email email@example.com.
Deprivation of Liberty Safeguards: information for professionals
Devon County Council and Torbay and South Devon NHS Foundation Trust Multi-Agency guidance: Deprivation of Liberty Safeguards (DoLS) Policy and Practice Guidance.
National Deprivation of Liberty guidance giving tips for completing the standard forms.
The Department of Health has produced Deprivation of Liberty Safeguards: A guide for primary care trusts and local authorities.
The Law Society has issued comprehensive guidance on the law relating to the deprivation of liberty safeguards, using case scenarios to explain the law. There is also a podcast which covers the key points and the practical effects.
Liberty Protection Safeguards (LPS)
In July 2018, the government published a Mental Capacity (Amendment) Bill, which passed into law in May 2019. It will replace the Deprivation of Liberty Safeguards with a scheme known as the Liberty Protection Safeguards (LPS).
The target date for the implementation of LPS is April 2022. We do not yet have regulations or the Code of Practice that will be required before the Act can come into force, but they will be added here in due course.
The government expects to publish a draft Code of Practice in 2021, along with the regulations, ahead of an expected implementation date for the Act of 1 April 2022.
The government has published a series of factsheets which can be found here and we have provided some frequently asked questions and answers about the LPS.
Please contact the LPS Project Team at firstname.lastname@example.org if you have any questions about the Safeguards.