Senior woman with carerIntroduction
DoLS overview
Benefits of DoLS
Defining and expanding deprivation of liberty
Emerging case law
Latest developments
Conclusion
References

 

 

 

 

Introduction

On 22nd July 1994, an adult male with autism and severe learning disability was admitted to Bournewood Hospital from a day centre after becoming agitated. Whilst he lacked capacity to consent to admission, he made no objections to admission and as such the Mental Health Act was not used. His carers objected to the standard of care in the hospital, but were prevented from taking him home. They subsequently sought a judicial review of the decision by Bournewood Community and Mental Health Trust to detain and retain the patient. The case was ultimately heard in the European Court of Human Rights,1 which ruled that UK Common Law did not provide sufficient protection for those whose freedom is restricted. The UK Government subsequently recognised this lack of protection and developed legislation to correct this, subsequently known as Deprivation of Liberty Safeguards (DoLS).

DoLS came into force on 1st April 2009 to provide legal protection to those care home or hospital residents who have a degree of restriction placed on their freedom, but lack capacity. They provide authority to restrict movement or detain individuals, but only if necessary in their best interests to prevent them from harm.

 

DoLS overview

In order to eligible for DoLS, all of the criteria listed in Table 1 must be met. It provides a legal authority for arrangements that are in place to deliver care and treatment, but importantly not for the treatment itself. Treatment falls under the remit of the Mental Capacity Act (2005). Deprivation of liberty under these circumstances would be authorised only by the Court of Protection. Finally, DoLS should not be used solely for minimising contact with individuals thought to be at risk of causing the person harm.

 

The current DoLS process

In order for a deprivation of liberty to be authorised the managing authority (the care home or hospital) must make an application in advance to the supervisory body (the local authority in which the person is ordinarily a resident). The supervisory body appoints assessors to determine if eligibility criteria as shown in Table 1 have been met. The assessment team comprises one mental health assessor and one best interests assessor who have both received training in their role. If requirements have been met, standard authorisation is granted for up to one year.

In practice, there may not be time for the supervisory body to respond to a standard authorisation and the deprivation of liberty may be required immediately. In this case, whilst making a standard authorisation application, an urgent authorisation can be used to detain a person for up to seven days. This can be extended by a further seven days by the supervisory body.

 

TABLE 1 ELIGIBILITY CRITERIA FOR DOLS:
The safeguard can only apply to those meeting all of the following:
  • Aged over 18 (Court of Protection for those under 18)
  • Residents of England or Wales
  • Currently residing in Hospital or an Acute Care Setting or Care Home registered under the Care Standards Act (2000)
  • Suffering from a mental disorder as defined by the Mental Health Act (2007)
  • Lacking capacity to consent to arrangements which amount to restrictions which deprive liberty, but are in the person’s best interests
  • Ineligible for detention under the Mental Health Act
  • Subject to no advance decision to refuse treatment or support that would be overridden by any DOLS process

 

Benefits of DoLS

DoLS ensures that those deprived of liberty are done so lawfully. Crucially, it provides a framework through which this decision can be appealed. Furthermore, those subject to DoLS are an inherently vulnerable group of people who may have had limited oversight of care plans in the past especially if self-funding. The assessment process itself is completed by an experienced psychiatrist and best interests assessor who will review all aspects of the care plan in place, recommending improvements where necessary.

Defining and expanding deprivation of liberty

The above criteria represent the essential tenets of DoLS, but case law since 2009 has built on these principles and has led to clarification of what amounts to a deprivation of liberty. In general, these clarifications have markedly increased the scope of DoLS and those for which safeguards are applicable. In particular, a Supreme Court Judgement in 20142 resulted in the formulation of an ‘Acid Test’ as to what this constitutes comprising of two questions:

  • Is the person subject to continuous supervision and control?
  • Is the person free to leave?

Both aspects of the Acid Test were further clarified in Law Society guidance3 recommending that a person can be considered under continuous supervision and control if there is a plan in place, which means that the body responsible always needs to know broadly where the individual is and what they are doing. For the second question, it is recommended that the focus be on how individuals would react if the person did attempt to leave rather than whether that person wishes to stay or not.

The use of restriction and restraint, which under certain conditions is authorised under the Mental Capacity Act, may also amount to a deprivation of liberty if it is ‘frequent, cumulative and ongoing, or if other factors are present.’4 Examples of situations where this may occur are listed in Table 2.

 

TABLE 2. EXAMPLES OF RESTRICTION/RESTRAINT WHICH MAY REPRESENT A DEPRIVATION OF LIBERTY5
  • Frequent use of sedation/medication to control behaviour
  • Regular use of physical restraint to control behaviour
  • Verbal or physical objection from the person restricted or restrained
  • Objections from friends or family regarding the restriction/restraint
  • A person confined to a specific part of the establishment where they are cared for

 

Emerging case law

Since 2015 there have been multiple developments in case law, which have expanded the role of DoLS further. In 2016, a case regarding the use of covert medication concluded that its use amounted to a restriction and ought to have been communicated to the supervisory body and friends/family.6 Unescorted leave with conditions attached, for example, that which is time limited and has consequences if a person does not return, can also be considered a deprivation of liberty.7 Community Treatment Orders (CTO)6 and requirements set out in a care plan as part of a conditional discharge8 may also amount to a deprivation of liberty and require a DoLS alongside to authorise this.

Conversely, DoLS has been found to not include the removal of or prevention of returning to friends and family for safeguarding reasons.9 This would instead require Court of Protection proceedings. A court also discharged DoLS for a patient in whom the main risk was of harm to others.10

Latest developments

Previously, those subject to a DoLS were considered to have been in ‘state detention’ mandating an inquest in the event of death. This led to an additional 7,183 inquests in 2015 many of which were perceived to have caused distress to families, unnecessary work for coroners and cost to local authorities.11 The recently passed Policing and Crime Act 2017 has resulted in an amendment to Section 48 of the Coroners and Justice Act 2009 stating that those under DoLS are no longer under state detention and therefore an inquest is no longer routinely required.

DoLS are recognised as a crucial safeguard in protecting vulnerable people however the legislation has also come under significant criticism. A Lords Select Committee on the Mental Capacity Act described DoLS as “leaving individuals without the safeguards Parliament intended” and “not fit for purpose”.12 The extension in definition of DoLS as a result of the Cheshire West Supreme Court ruling has also markedly increased the number of DoLS applications, which increased approximately 10-fold to 13,7500 in 2014–15 compared to the previous year,13 frequently overwhelming local authorities.

This has led to a report recommending the replacement of DoLS with ‘Liberty Protection Safeguards’ published by the Law Commission in March 201714 with the objective to streamline and simplify the process. The main recommendations and changes are listed in Table 3.

TABLE 3. CHANGES PROPOSED BY LIBERTY PROTECTION SAFEGUARDS
Expansion to include those aged 16 or over
Applies to those of ‘unsound mind’ as defined by European Court of Human Rights rather than a ‘mental disorder’ under the Mental Health Act
Authorise arrangements to enable care or treatment that give rise to deprivation of liberty potentially in more than one setting
Liberty Protection Safeguards Procedure
  • Responsible body appoints advocate/appropriate person
  • Responsible body arranges capacity assessment, medical assessment and ‘necessary and proportionate’ assessment
  • Single independent assessor reviews this information
  • If person objecting or main reason for deprivation is ‘harm to others’ referral to an Approved Mental Capacity Professional, otherwise if criteria met, deprivation of liberty is authorised.
Safeguards to include ongoing rights to advocacy, regular reviews and access to court

 

Conclusion

DoLS were introduced to fill an important gap in legislation in protecting those without capacity whose liberty is restricted. Their remit has been expanded particularly as a result of the Cheshire West legal case resulting in what in many cases has become an overwhelming and unsustainable burden on local authorities.

Recent developments mean that the coroner need no longer be informed of the death of an individual subject to DoLS as its implementation is no longer considered ‘state detention’. Additionally, the limitations of DoLS have been recognised in the publication of a report recommending ‘Liberty Protection Safeguards’ as an alternative streamlined process, but the timescale for its acceptance and implementation remains unclear.

 

Dr Jonathan Blackman
Dr Simon Manchip, Consultant Psychiatrist

Conflict of interest: none declared

 


References

1. HL v UK [2004] 45508/99 European Court of Human Rights

2. P v Cheshire West & Chester Council [2014] United Kingdom Supreme Court 19

3. The Law Society : Identifying a deprivation of liberty : a practical guide [2015], Section 3 – Key Questions after Cheshire West

4. Deprivation of Liberty Safeguards Code of Practice [Sections 2.8-2.12]

5. Deprivation of Liberty Safeguards At a Glance 43 : [May 2015] : Social Care Institute for Excellence. http://www.scie. org.uk/publications/ataglance/ataglance43.asp

6. AG v BMBC & SNH [2016] England and Wales Court of Protection 37. Case No 12710957

7. PJ v A Local Health Board [2015] United Kingdom Upper Tribunal 0480 (AAC)

8. Secretary of State for Justice v KC and C Partnership NHS Foundation Trust [2015] United Kingdom Upper Tribunal 0376 (AAC)

9. SN v Hillingdon Council [2011] EWHC 1377

10. P v A Local Authority [2015] COP No: 12715633

11. Report of the Chief Coroner to the Lord Chancellor, Third Annual Report: 2015-2016, paragraph 147

12. House of Lords Select Committee on the Mental Capacity Act: Report of Session 2013-14: Mental Capacity Act 2005: Post-legislative Scrutiny [2014] HL 139, para 32.

13. Mental Capacity Act 2005 : Deprivation of Liberty Safeguards (England), Annual Report 2014-15. Health and Social Care Information Centre

14. Mental Capacity and Deprivation of Liberty Summary. Law Commission No 372 (Summary)