Deprivation of liberty safeguards (DoLS)
A new law came into force from April 2009 that safeguards those people who lack capacity to consent to the care or treatment they receive and are being cared for in registered care homes, registered nursing homes or hospitals.
What are the Deprivation of Liberty Safeguards?
The Deprivation of Liberty Safeguards (DoLS) are a supplement of the 2005 Mental Capacity Act. The DoLS provide additional protection for the most vulnerable people living in care homes, nursing homes or hospitals.
Who does the legislation apply to?
The DoLS only apply to people who lack capacity to consent to the care or treatment they receive as well as:
- aged over 18 years old
- in receipt of care in a hospital or registered care home setting
- if the care they receive deprives them of their liberty
- they are not detained under the Mental Health Act
A judgement concerning ‘Deprivation of Liberty’ was handed down by the Supreme Court on 19 March 2014. The judgement concerns the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, the deprivation must be authorised by a court or by the DoLS procedures in the Mental Capacity Act 2005, and subject to regular independent checks.
The Department of Health have also issued information and guidance relevant to all support and care providers who work with people who may lack mental capacity. Managing Authorities, care providers and commissioners should familiarise themselves with this.
The Law Society have published a practical guide on the law relating to deprivation of liberty safeguards.
'Managing authorities' (care homes and hospitals) should familiarise themselves with this judgement and consider the implications for their own practice. If considered appropriate they should seek independent legal advice.
Under the provisions of the Mental Capacity Act (MCA) it can be lawful to restrict or restrain a person where it has been assessed to be in their best interests in order to prevent harm to that person, as long as:
- The least restrictive method is used for the shortest period of time that is necessary to achieve the outcome
- The restriction does not amount to a deprivation of the person's liberty
Applications for DoLS must only be made as a result of an MCA compliant and properly recorded, best interest decision for that person. Managing authorities are reminded of their responsibilities and the guidance outlined in the DoLS Code of Practice.
Applications for DoLS must be made where the person lacks the mental capacity to decide about (consent to or refuse) the accommodation and support arrangements assessed to be necessary for them. As well as the following:
- the person is subject to continuous supervision and control by a third party (for example, care / support workers)
- the person is not free to leave their accommodation
We are not able to give legal advice to managing authorities or other providers and neither can it advise, in the absence of a formal request for a DoLS authorisation, whether a person's particular circumstances amount to a deprivation of liberty.
How to make an application for DoLS
The West Northamptonshire DoLS Service is the referral point for all referrals for those people where their care is funded by a Northamptonshire funding body, including requests for extensions, further periods of authorisation for those already in receipt of an authorisation and reviews.
The person's 'ordinary residence' is the determining factor as to which local authority the DoLS referral should be sent. The guidance below should assist in determining which local authority a DoLS referral should be sent:
- if the person is self-funding or homeless, send the DoLS referral to the local authority in your area – this would be West Northamptonshire Council
- if the person's care / nursing home placement is funded by West Northamptonshire Council, send the DoLS referral to West Northamptonshire Council. If the funding is from local authority other than West Northamptonshire Council, please send the referral to that other local authority
- if the person's placement is paid for by NHS continuing healthcare, the DoLS referral should be sent to the local authority which covers the address where the person was living at home (prior to being admitted to hospital or moving into NHS funded residential care)
- If the person is admitted to hospital, the DoLS referral should be sent to the local authority which covers the person's home address. If the person does not live in their own home – for example, a care home – it may be necessary to consult with the care home to establish the relevant local authority (check if self-funding or which is the funding local authority)
If the person is ordinarily resident in the area administered by West Northamptonshire Council, please complete the form:
You are now able to download a PDF copy of your DoLS request form submission. Once you've completed this form, you will be able to select a button titled 'Download PDF'. You can then save and print a copy of your submission.