Deprivation of liberty: Human rights (DoLS)

Article 5 European Convention on Human Rights

Article 5(1) states, “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”. The reference here to “following cases” refers to subsections outlining specific groups of people who can be deprived of their liberty as long as it is done using a legal procedure.

Subsection (e) is the most relevant group of people for health and social care purposes. Subsection (e) allows for “the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants”. The language is not perhaps to 21st century taste but it needs to be remembered that these Articles were written in the late 1950s.

Article 5 (1) (e) therefore allows us to deprive someone of their liberty assuming that they fit into one of these categories and the Deprivation of liberty is undertaken using a legal procedure. For our purposes, working within the MCA 2005, the specific group of people we are interested in are those “persons of unsound mind”. The usual legal process for depriving persons of unsound mind of their liberty in England and Wales is the Mental Health Act 1983. However, not all individuals will meet the criteria for detention under the MHA 1983. Another legal process (DoLS) needed to be developed to allow for lawful Deprivation of liberty for those not covered by the MHA 1983.

A further requirement of Article 5 is that of Article 5 (4) which states “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” Both the MHA 1983 and DoLS have an appeals mechanism.