Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards are part of the Mental Capacity Act 2005 (amended by Mental Health Act 2007). It applies to anyone;

• Who is aged 18 or older
• Has an impairment of, or a disturbance, in the functioning of, the mind or brain 
• Lacks the capacity to give consent to their care/treatment
• Receiving care or treatment that might amount to a deprivation of liberty under Article 5 of the European Court of Human Rights.

If there is no alternative but to deprive such a person of their liberty, the Deprivation of Liberty Safeguards say that a hospital or care home must apply to the supervisory body to legally authorise the deprivation of liberty. . The supervisory body is the local authority that commissions the service.

The Supervisory Body is responsible for commissioning the required assessments to determine whether the person concerned;

• comes under the deprivation of liberty safeguards

• is deprived of their liberty, and if so, whether it is in their best interests.

A Mental Health assessor checks whether the person has an impairment of or a disturbance in the functioning of the mind or brain. This is normally a doctor, often a psychiatrist. The Best Interests Assessor (a social worker, nurse, psychologist or occupational therapist) discusses what would be in the person’s Best Interest, particularly how the deprivation might impact on their mental health. They may also consult other professionals involved in the person’s care, family members, friends, or carers for the person. These assessors are appointed by the supervisory body which is usually the local authority, but could also be the NHS. If all of the conditions are met (as above), then the assessors will report back to the supervisory body who will then grant an authorisation for a maximum period of 12 months. The assessors should always consider whether there is a less restrictive way of providing the care or treatment.

The law says the Relevant Person must have a ‘Representative’ to help make sure their wishes and rights are upheld. It is the Supervisory Body’s responsibility to make sure that the person being deprived of their liberty has a ‘Representative’.

This role is either taken unpaid by the person’s family member or a friend or by a paid professional, such as an advocate. A paid RPR may be needed if there are no family members or friends suitable or willing to be an RPR. 

During a DoLS authorisation, the RPR will:

• visit the person regularly to ask their views and see that they are being cared for well

• check that the care setting is keeping to any conditions of the DoLS authorisation

If necessary, an RPR may request a review of the authorisation when necessary or make an application to the Court of Protection to get the authorisation changed or ended.

Even when someone is unable to tell their RPR what they want, the RPR will use a range of approaches to find out their views as far as possible and safeguard their rights.

The Safeguards also allow people the right of appeal against a decision in a court of law.

Supreme Court judgement

On 19 March 2014, the Supreme Court handed down its judgements in the cases of P vs Cheshire West and Chester Council and another and P and Q vs Surrey County Council.

The Supreme Court found that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances: 'The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements'.

The judgements suggest that the definition of a deprivation of liberty is wider than previously thought.

The Supreme Court held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This includes a placement in a supported living arrangement in the community.

Where there is, or is likely to be, a deprivation of liberty in such placements, this situation is not covered by the safeguards and it must be authorised by the Court of Protection.