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Mental Capacity Act and Deprivation of Liberty Safeguards

Mental Capacity Act

Please see the Mental Capacity Act page for a brief introduction to the Act.

Deprivation of Liberty Safeguards

Deprivation of Liberty Safeguards (DoLs) were introduced in England and Wales in April 2009 as part of the Mental Capacity Act 2005. The aim of DoLs is to provide protection for vulnerable people who are 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 required.

The Supreme Court  made a landmark judgement on March 19th 2014 about the meaning of deprivation of liberty, which was followed on 28th March by a guidance letter from the Department of Health. Below is a short excerpt  from the guidance.

Revised test for deprivation of liberty

The Supreme Court has clarified that there is deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances:

The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements. 

The Supreme Court held that factors which are NOT relevant to determining whether there is a deprivation of liberty include the person’s compliance or lack of objection and the reason or purpose behind a particular placement.  It was also held that the relative normality of the placement, given the person’s needs, was not relevant.  This means that the person should not be compared with  anyone else in determining whether there is a deprivation of liberty.  However, young persons aged 16 or 17 should be compared to persons of a similar age and maturity without disabilities.

Deprivation of liberty in “domestic” settings

The Supreme Court has held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements.  This will include a placement in a supported living arrangement in the community.  Hence, where there is, or is likely to be, a deprivation of liberty in such placements that must be authorised by the Court of Protection.”

The full guidance letter can be found by following this letter from the Department of Health [PDF]

We have also produced guidance for providers following the ruling.

Deprivation of liberty safeguards only apply to adults aged 18 and over and do not apply to people while they are detained in hospital under the Mental Health Act 1983.

The typical process for a deprivation of liberty is for the care home or hospital where the person is staying (known as the 'Managing Authority') to apply to the Local Authority or Primary Care Trust (know as the 'Supervisory Body') to be able to lawfully deprive someone of their liberty.

The supervisory body carries out a number of assessments to ensure that the person has a mental disorder and/or lacks the ability to make decisions about where they live or their treatment and that any deprivation of liberty would be in best interest of that person.

The outcome of these assessments decide whether a deprivation of liberty is granted or not.

Further information on Deprivation of Liberty Safeguards can be found in one of the following sections:

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