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Mental Capacity Act practice guidance

Part 32

Deprivation of Liberty Safeguards

Code of Practice 6.49; Deprivation of Liberty Code of Practice

The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act introduced in 2009. It is a system of assessments and authorisations which ensures legal protection for people who lack capacity and whose care needs to be given in circumstances which will deprive them of their liberty. The information here is only an introduction.

Some staff will need to be familiar with the full process of applying for a Deprivation of Liberty authorisation. All staff need to be aware of DoLS and need to be aware of how to raise a concern if they feel someone may be being deprived of their liberty.

The Deprivation of Liberty Safeguards only:

  • apply to people who lack capacity
  • apply to people aged 18 or over
  • apply to people in hospital, nursing homes or residential homes – they don’t apply to people supported in rented accommodation
  • allow consideration of risks to that person – they can’t be used to manage risks to other people
  • authorise where the person is – they don’t authorise the treatment the person is receiving; this will need to be considered under MCA.

What is a Deprivation of Liberty?

Depriving someone of their liberty may be a necessary process due to their circumstances. People in prison, or are detained in hospital under the Mental Health Act, are deprived of their liberty. This is legal because due legal process has been followed to make these decisions.

Some people who lack capacity to make decisions about their care may need to be deprived of their liberty. This may be because they aren’t able to co-operate with the decision about where they live.

MCA s6 allows for the restriction of someone’s movement if:

  1. the person lacks capacity
  2. the action taken is in their best interests and is a proportionate response to risks posed to that person.

MCA section 6 does not allow for the person to be deprived of their liberty. (Part 14: Restraint)

The difference between deprivation of liberty and restriction of movement is about ‘degree and intensity’ rather than ‘nature or substance’. This means it is not possible to produce a list of things which will indicate a deprivation – each person’s situation needs to be assessed individually. The same locked door may be a restriction of one person’s movement and a deprivation of another person’s liberty.

To consider if someone is deprived or restricted it is helpful to consider:

  • the type of restraint – a locked door may not be a deprivation, but repeated use of sedation is likely to be
  • the duration of restraint – immediate restraint to prevent harm will generally be covered by MCA section 5, but if the restraint continues it may lead to deprivation. Grabbing someone to stop them walking into traffic once would be restraint: if they were then stopped from going outside in case they ran into the road this might be a deprivation
  • the effects of the restraint for the person involved. How do they feel about the restrictions put on them? If someone is distressed about the locked door and keeps trying to leave they may be being deprived, whereas someone who is able to accept that they need to stay somewhere safe may not be deprived by a locked door.
  • the implementation of the restraint. How was it decided that this restraint was necessary? Is this the least restrictive alternative? Was the restraint agreed in negotiation with the person’s family? Are there proper reviews and risk assessments in place?

Factors that should lead you to consider if someone is deprived of their liberty.

  • Is the person repeatedly trying to leave the unit? Or if they are physically not able to attempt to leave are they purposefully talking about wanting to leave?
  • Are there measures being taken to prevent the person from going, such as a locked door or a security guard in place?
  • Is the person distressed about being where they are? Are they resisting interventions from staff?
  • Are staff controlling all the person’s movements and actions?
  • Is sedating medication being repeatedly used to control the person’s movements or behaviour?
  • Are family and friends opposed to the person’s placement?

None of these factors will necessarily mean that someone is being deprived of their liberty, but should lead to a more detailed consideration of their situation.

What to do if you think someone may be deprived of their liberty

Make sure your views are considered.

Every hospital, nursing home and residential home must have a policy about how to apply for a DoLS authorisation. There will be a senior member of staff identified who have responsibility to consider if someone is being deprived and to make the necessary referrals. Any member of staff who thinks a deprivation is taking place must speak to the senior member of staff on duty and pass on their concerns.

Any visiting professional or personal visitor who is concerned about a deprivation of liberty must pass on their concerns to the managers of the unit, who must then take suitable action.

The management of the unit will need to contact the local Deprivation of Liberty team to make a referral. If your concerns are not responded to appropriately it is possible to make a Third Party Referral for an assessment. Contact the local Deprivation of Liberty team. (Contact details)

It is always sensible to contact the local DoLS team to discuss a referral. It may be that it is decided the person is not being deprived, or that another route is more suitable (such as Mental Health Act). The DoLS team will be able to give expert advice.

After a referral for an authorisation there will be a process of assessment. The full assessment comprises six individual assessments.

It may be that it is assessed that the person is not deprived of their liberty. It may be possible to alter someone’s care plan so that they are no longer deprived. It may be agreed that they need to be deprived and this will be authorised for a specified period of time. It may be that it is felt that the person is deprived, but that this is not appropriate and is not authorised so changes will need to be made to the person’s care plan to ensure that the deprivation ceases. You will be informed of the outcome of the assessment.