These safeguards are an amendment to the Mental Capacity Act 2005. They apply to people aged 18 or over in hospitals and care homes in England and Wales who are unable to make decisions for themselves but who are not detained under the Mental Health Act (1983).
The safeguards affect people who may be in hospitals, or in Residential Care and Nursing Homes, and may include anyone over the age of 18 years with a Mental Disorder. This includes people with dementia who are admitted to a hospital or a care home, are ‘deprived of their liberty’ and do not have the ability to make the decision about their care or treatment.
The safeguards came into force on 1 April 2009 and are intended to ensure that a person's loss of liberty is lawful.
If a request to Telford & Wrekin as the supervisory body to authorise a persons Deprivation of Liberty is agreed, then that person:
- must have a representative appointed to support them.
- has the right to challenge the authorisation in the Court of Protection.
- can request that the authorisation be reviewed to check whether criteria to deprive them of their liberty are still met.
- hospitals and care homes have to identify the restrictions that they need to have in place to keep someone safe.
- if these restrictions (when added together) amount to a deprivation of liberty, the hospital or care home must request an authorisation from the Supervisory
- it is unlawful for a hospital or care home to deprive a person of their liberty without obtaining an authorisation.
What is a Deprivation of Liberty?
There is no list of what a deprivation of liberty is but a Supreme Court judgement in March 2014 refers to the 'acid' test about whether a person is being deprived of their liberty.
- Is the person subject to continuous supervision and control from those supporting them.
- Is the person free to leave to live elsewhere and how would those supporting them react if they wanted to do so.
What is the Process?
When the DoLS Team receive a request for an authorisation, they will organise a series of 6 assessments.
These assessments are carried out by trained Best Interest Assessors (B.I.A.s) and suitably qualified doctors.
The assessments have to confirm that the care measures proposed or taking place are in fact a deprivation of liberty and are:
- for a person who lacks capacity to make a decision on their care
- necessary to prevent harm to them
- the least restrictive way to keep the person safe
- in their best interests, considering their stated wishes and beliefs and those of people close to them
- legal and compatible with other care legislation.
The DoLS Code of Practice guides professionals, Managing Authorities and Supervisory Bodies on their roles and responsibilities and processes involved under the Safeguards.
Mental Capacity Act 2005: Deprivation of liberty safeguards - Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice: Department of Health - Publications.
Requests for authorisations from care homes should be emailed to: email@example.com.
The DoLS contact number for Telford and Wrekin enquires is: 01952 383054.
Last updated: 9.24am on Monday 10 February 2020