What are the Mental Capacity Act Deprivation of Liberty Safeguards?

Deprivation of Liberty Safeguards (DoLS) protect people who lack capacity to consent to being deprived of their liberty. This means that because an illness, an injury or a disability has affected the way their mind works they are not able to agree that they will not be allowed to do certain things.

Because of the DoLS vulnerable people cannot have their freedom taken away unless it is in their best interests and there is no ‘less restrictive alternative’ (an option which will affect the person’s freedom or rights less).

The Supervisory Body (the local council where the person normally lives) decides if a person can legally be deprived of their liberty and for how long. To do this they arrange assessments.

What is a Deprivation of Liberty?

When a Managing Authority (either a care home or hospital) has a reasonable belief they may be depriving a person in their care of their liberty, they make an application to the Supervisory Body at the Local Authority responsible for the person’s care for a Standard Authorisation; they may also grant themselves an Urgent Authorisation which allows the Managing Authority to legally deprive the person of their liberty for 7 days whilst assessments take place.  The Supervisory Body will then put a process in place to review this placement to establish:

• If a Deprivation of Liberty (DoL) is taking place and whether what’s called the ‘Acid Test’ from Cheshire West Supreme Court ruling is met

• The ‘Acid Test’ is whether the person is being continually monitored and supervised where they are, living and get no unsupervised access to the community, and whether the person would be free to leave and live where they wanted. If the person is always escorted, whether by staff or family/friends, and they would be stopped from moving to another place, then the Acid Test is met and the person is being deprived of their liberty.

• If the deprivation is in the best interests of the person
• If any conditions need to be met to ensure the DoL continues to be in the person’s best interests, and that any restrictions placed upon the person are as few or as restrictive as necessary
• Restrictions can include not accessing the community, being able to exercise their faith, use of medication or equipment, not pursuing hobbies and pastimes the person would enjoy
• Who will visit and monitor the person’s placement for the duration of the DoL

If the Supervisory Body then concludes the evidence is met that the person must be deprived of their liberty, the Supervisory Body will authorise the DoL for up to a year. Each authorisation has to be reviewed towards the end date.

Who does the Mental Capacity Act Deprivation of Liberty Safeguards apply to?

DoLS apply to anyone who is 18 or over and who lacks capacity to consent to being deprived of their liberty. The safeguards cover patients in hospitals and people in care homes but do not apply to patients who are detained under the Mental Health Act.

How do POhWER advocates support people?

Our advocates protect the human rights of people who lack capacity and seem to be being deprived of their liberty. Our advocates work with them to make sure the deprivation is lawful, reasonable and in their best interests.

When the Supervisory Body is considering a DoLS authorisation an Independent Mental Capacity Advocate (IMCA) should be appointed for anyone who does not have a suitable friend or family member to speak for them. The IMCA supports the person and collects information about them including their beliefs, values and previous behaviour and uses this to write a report for the assessors. The IMCA can also challenge decisions made by the assessors. This is a 39A IMCA.

When the Supervisory Body authorises (agrees) a deprivation of liberty it must make sure the person deprived of their liberty has a representative who can explain their rights to them and how they can use them. If a family member or friend is willing and able to take this on they become the person’s unpaid representative. If there is no unpaid representative a Paid Representative is appointed. 

If there is a gap between representatives an IMCA can be appointed temporarily; this is a 39C IMCA.

An IMCA can also be appointed when a person who has an unpaid representative if:

• The person asks for support; or
• The unpaid representative asks for support; or
• The Supervisory Body thinks either the person or the unpaid representative would benefit from support.

This is a 39D IMCA.

Where do we provide this service?

You can find out if we provide this service in your area by clicking on the link below. If we don’t provide a service where you live, please call our Help Hub on 0300 456 2370 for information, advice and signposting to other organisations in your area who may be able to help you.

POhWER support in your area

How do I get support from an advocate?

Referrals are made through the local council. Please contact us if you need more information.

Resources

Deprivation of Liberty Safeguards (DoLS) leaflet (pdf)

See also our Independent Mental Capacity Advocacy (IMCA) page and Relevant Person’s Paid Representatives page