Deprivation of Liberty Safeguards
You have the right to be free to do the things you want to do, live where you want to live and to be safe. If someone's freedom is taken away or restricted, this is called Deprivation of Liberty.
The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS) came into effect on 1 April 2009. The MCA DoLS provide protection for vulnerable people who lack the capacity to consent to the care and treatment they need in a care home, hospital, in supported living or at home. The assessment process ensures that any restrictions placed on the person are done so in their best interests and that they are proportionate to the risks the person may face. The majority of people who require the protection of the MCA DoLS may include those with a:
- Severe learning disability
- Diagnosis of dementia
- Neurological condition
- Brain injury
How the decision is made
The Supreme Court has ruled that there are two criteria for someone being deprived of their liberty:
- The person is under continuous supervision and control.
- They are not free to leave the care setting and they do not have the mental capacity to understand and consent to their current care or treatment plan.
If these criteria are met, then the person will need to be referred to the Council’s DoLS Team so that the appropriate assessments can take place.
Two different people will carry out the assessments, a doctor, usually a psychiatrist with a specific qualification, and a social worker trained as Best Interests Assessor. If they agree that the deprivation of liberty is necessary, an 'authorisation' is given to the care home or hospital by the Council.
If this happens to you
Someone else may think that they need to restrict your freedom to give you the care or treatment you need. If you are able to make an informed choice about this, it is your right to say no and nobody else needs to be involved.
If you can't understand what is happening, the law says that whoever is looking after you cannot take your freedom away without independent checks taking place to make sure that your voice is heard, and that the restrictions are in place to keep you safe. This law is set out in the Mental Health Act and the Mental Capacity Act.
The only time when your informed choice might be overridden is if you need to be detained under the Mental Health Act.
A deprivation of liberty could take place anywhere - in a care home or hospital, even in your own home. If it happens in your own home, the Council cannot agree the restrictions, and the situation needs to be looked at by a Court of Protection. The court also has to be involved if you consistently say that you don’t want to be in a care home or hospital.
The person whose freedom has been taken away will always have a representative to speak up on their behalf. This could be a family member, friend or someone trained to do this as a paid professional. They also have the right to ask for a review from the Council, or to appeal the authorisation by asking a Court of Protection judge to look at their case.
Challenging an authorisation
You can challenge an authorisation on behalf of the person you represent by contacting the DoLS team at the council. If you wish to challenge an authorisation from the Court of Protection, you should contact the Court of Protection Customer Services:
Telephone: 0845 330 2900
If you are worried
If you care for someone and are worried about their safety or mental health, speak to the person in charge - the care home manager or the doctor or nurse in charge. They will need to contact the Council to request authorisation. The person in charge can give themselves an urgent authorisation to deprive the person of their liberty for up to seven days, if they believe that they must act immediately to keep someone safe.
If you want to report a concern that someone may be having their liberty unnecessarily restricted in a care home or hospital setting, then you should contact the DoLS team:
Telephone: 020 8831 6337
Up to: Staying safe
Updated: 18 June 2020