Deprivation of Liberty (DoLs)
Deprivation of Liberty (DoLs) legislation was introduced on 1st April as an addendum to the Mental Capacity Act (MCA) 2005. It provides protection for vulnerable people accommodated in hospitals or care homes in circumstances that amount to a deprivation of their liberty and who lack the capacity to consent to the care or treatment they need.
This legislation is mainly aimed at protecting people with more sever learning disabilities and older people living with a dementia, as well as people with neurological conditions such as brain injuries.
The deprivation of a person’s liberty is a very serious matter. The Mental Capacity Act Deprivation of Liberty Safeguards ensure that deprivation of liberty should be:
- avoided whenever possible.
- authorised only in cases where it is in the relevant person’s best interests and is the only way to keep them safe.
- for as short a time as possible.
- only for a particular treatment plan or course of action.
What constitutes deprivation of liberty will depend on the circumstances of each individual care, considering factors such as whether:
- the person is resisting or other people, such as care staff, want the person to be discharged.
- care staff have total control over the person’s care and movement.
- care staff control who the person can see and what kind of treatment they have.
- the person has lost all authority.
Deprivation of liberty is different from restraint, although the difference is often one of degree of intensity. Certain action could develop into a deprivation of liberty. However, the courts recognise that restraint may be appropriate when used to prevent harm to the person who lacks capacity and is a proportionate response to the likelihood and seriousness of harm. For example, preventing a person leaving a care home or hospital on their own, because there is a risk that they would try to cross the road in a dangerous way, is likely to be seen as proportionate restraint to prevent the person coming to harm.
Challenging Unlawful Deprivation of Liberty
If you believe that your friend or family member is being unlawfully deprived of their liberty, you must inform the care home or hospital immediately.