When the Deprivation of Liberty Safeguards Apply
1. When the Deprivation of Liberty Safeguards apply
The Deprivation of Liberty Safeguards (DoLS) is a legal framework set out in Schedules A1 and 1A of the Mental Capacity Act. They apply when:
- A person is 18 years or over;
- The person is detained (or will be detained) in a care home or hospital; and
- Their detention is for the purpose of receiving care or treatment; and
- The person lacks capacity to consent to their accommodation or the care or treatment being received.
The Acid Test (defined in the case of Cheshire West) sets out the 3 conditions that must always exist in order for a detained person to be deemed deprived of their liberty:
- They are subject to continuous supervision and control; and
- Not free to leave the place in which they are detained; and
- The care and treatment being received is imputable to the state (the responsibility of the state to provide).
Click here to access a flowchart summarising the circumstances when the Deprivation of Liberty Safeguards apply.
2. Deprivation of Liberty in other Circumstances
Deprivations of liberty can occur in any setting. However, the Deprivation of Liberty Safeguards framework in the Mental Capacity Act only applies in the specific circumstances set out above.
The Court of Protection has powers under the Mental Capacity Act to authorise deprivations of liberty when:
- The person being deprived is aged 16 or 17 and is detained in a care home or hospital; or
- The person being deprived is aged 18 or over and is not being detained in a care home or hospital.
The High Court has powers to authorise deprivations of liberty when the person being deprived is a young person under the age of 16 (and thus where the Mental Capacity Act does not apply).
If restraint is being used appropriately then it is not likely that the Deprivation of Liberty Safeguards will apply. Restraint is defined under the Mental Capacity Act as:
- Any act that uses, or threatens to use, force to carry out another function to which the person resists; or
- Any act that restricts the person's freedom of movement, whether or not they resist.
Restraint is appropriate under the Mental Capacity Act when:
- The Decision Maker believes that it is necessary to restrain the person in order to prevent them from being harmed; and
- There is evidence that restraint is a proportionate response to the likelihood and seriousness of harm.
Indicators that the restraint may require authorisation under the DoLS framework include:
- Frequent use of restraint;
- Cumulative use of restraint;
- Ongoing use of restraint; and
If a managing authority is not certain that the use of restraint is appropriate they should request a standard authorisation.
4. Life Saving Treatment
There is no requirement to authorise a Deprivation of Liberty when the person is detained in a hospital for life saving treatment, so long as the treatment is:
- Rendered unavoidable;
- Necessary to avert a real risk to life; and
- Kept to the minimum required for the purpose of averting a real risk to life.