Deprivation of liberty: Human rights (DoLS)

The Deprivation of Liberty Safeguards (DoLS)

The current legal process, the Deprivation of liberty Safeguards are only usable in England and Wales where the individual is in either a hospital or registered care home. Under DoLS the care provider is termed the “Managing Authority” and it is their responsibility to identify where they might be depriving an individual of their liberty and take steps to make that lawful. They have to apply to the local authority (in England) or Local Health Board (for hospitals in Wales) to have the Deprivation of liberty authorised.

A standard DoLS authorisation can only be given, and the situation made lawful if it meets certain criteria. This is a six-part assessment process carried out by a minimum of two suitably qualified assessors, one a doctor and the other a Best Interest Assessor (BIA).

In order for the Deprivation of liberty to be authorised the person has to be over 18; have a mental disorder as defined within section 1 MHA 1983; lack capacity to consent to the arrangements made for their care and treatment; not have a valid and applicable Advance Decision to Refuse Treatment or decision made by an Attorney or Court Appointed Deputy which conflicts with the Deprivation of liberty; not be subject to the MHA 1983; and finally a BIA has to identify whether the situation does amount to a deprivation of the person’s liberty, whether that Deprivation of liberty is in order to protect the person themselves from harm, is a proportionate response to the likelihood and severity of that harm occurring and if the confinement is in the person’s best interests.

It is expected that BIAs consult widely with family members, friends, clinicians and other appropriate people and the person who has been deprived of their liberty has to be supported by a “Relevant Person’s Representative” who is usually a family member or friend. BIAs are also expected to recommend a time for the authorisation to last (maximum one year) and can recommend that conditions are attached to any authorisation given. There are also a number of roles for Independent Mental Capacity Advocates for appropriate individuals.