Putting DoLS into practice
SCIE Report 66
Published: October 2013
Updated: September 2017
This resource describes good practice in the management and implementation of the Deprivation of Liberty Safeguards (DoLS; the Safeguards). It includes the roles of clinical commissioning groups (CCGs) and wider local authority governance. The resource is structured with freestanding sections, hence there is some inevitable repetition between them.
The resource is not intended to be a complete and authoritative statement of the law, and should not be relied on as such. Examples of good or innovative practice are used to show how the Safeguards can work effectively to protect the human rights of the most vulnerable adults in society, but it is not suggested that the practice described is the only way to achieve this.
Since the introduction of DoLS, there is some encouraging evidence of human rights-based practice becoming central to the relationship between health and social care professionals, those who might lack capacity for some essential decisions, and their families or friends.
Human rights-based practice is supported and led by both the Court of Protection and the European Court of Human Rights (ECtHR), with increasing numbers of cases concerning deprivation or restriction of liberty, the boundary between the two, and the essential questions of how to balance the wishes and the welfare of vulnerable people.
The importance of the Mental Capacity Act
The Mental Capacity Act (MCA) 2005, which consolidates human rights law for people who might lack capacity to make their own decisions, is the foundation for DoLS. It is designed to promote the empowerment of individuals and the protection of their rights. The MCA is built on five statutory principles that guide and inform all decision-making in relation to the estimated 2 million people who may lack capacity for decision-making in some aspect of their lives. The MCA is the essential and required framework for health and social care commissioning and practice.
A deprivation of liberty can only be authorised under the MCA when there is evidence that a person lacks capacity for specific decision-making about whether they should be accommodated in a hospital or care home and when the proposed care arrangements that deprive that person of their liberty are in their best interests.
All providers and commissioners of health and social care must therefore have a good understanding of the MCA. This will ensure that appropriate assessments of capacity are carried out, including all possible attempts to empower people to make relevant decisions for themselves. It will also ensure that decisions made for those who lack the required mental capacity are in their best interests.
Any situation calling for a request for authorisation under DoLS must first meet the general requirements of the MCA. This means that care planning within hospitals and care homes, as in other settings, must be compliant with the Act. Demographic changes, such as an ageing population and longer life spans for people with learning disabilities, mean that an increasing proportion of people who receive health and social care may lack capacity to consent to or refuse some interventions, or indeed are at risk of being presumed to lack capacity due to stereotyping based on their age or diagnosis.
The Safeguards apply in England and Wales to situations when care or treatment is provided to a person who lacks the mental capacity to consent to arrangements proposed for that care or treatment in a hospital or care home, and the arrangements amount to a deprivation of liberty.
The Safeguards provide a legal framework to prevent breaches of Article 5 of the European Convention of Human Rights (ECHR) (1), which 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:
(e) the lawful detention … of persons of unsound mind …
- 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.
Mrs F (88): DoLS example from practice
Mrs F (88) had a long history of dementia. She lived alone and very independently in a spotless bungalow, maintaining strict routines, but was neglectful of herself (often forgetting to eat and drink properly). One day, Mrs F left an electric heater on, covered by clothing, then tried to put the resulting flames out with water and by cutting the cable to the plug without turning the electricity off. The fire was serious, and she was admitted to hospital. She was very confused, and left the hospital twice, in her nightclothes, trying to go home. On both occasions the police found her in a distressed state, and returned her to the hospital.
The hospital, as the managing authority, gave itself an urgent authorisation in order to make it legal to deprive Mrs F of her liberty, in her best interests. At the same time, the hospital applied for a standard authorisation under DoLS from the supervisory body.
The best interests assessor agreed that Mrs F was being deprived of her liberty, and that this was in her best interests. He suggested a short period of standard authorisation, with conditions around care planning, and a best interests meeting to ensure that the least restrictive option for Mrs F’s care was identified. This was authorised by the local authority authorising signatory. Due to her lack of family or close friends, an independent mental capacity advocate (IMCA) was part of the assessment process.
When she had recovered from the effects of the fire, Mrs F was admitted to short-term residential care, while her house was being repaired. The care home, the new managing authority, applied in advance of her admission for a standard authorisation, which was approved (authorisations are place-specific, so the hospital authorisation did not 'travel' with Mrs F).
Mrs F’s social worker and the best interests assessor both felt she still did not have the mental capacity to make her own decisions about where she should live, but they acknowledged her strong desire to go home.
The repair of her home following the fire took several weeks, during which time a series of best interests meetings identified a plan for her return. Mrs F agreed that it would help her to have a live-in carer, and visited home several times with her social worker and IMCA to prepare for her return home. She returned and all went well for a few days, but then there was an aggressive incident towards her carer. Mrs F asked to go back to ‘the lovely care home to my friends’. She returned to the care home where she remains, now settled and calling it her home.
In this resource:
SCIE would like to thank the following members of the project steering group, who generously shared their expertise in the original 2013 production of this resource:
- Lucy Bonnerjea, Mental Capacity and DoLS Lead, Department of Health
- Chris Bould, Specialist Mental Health Commissioning and Performance Manager/DoLS Lead, Surrey PCT
- Steve Chamberlain, Social Care Lead (Mental Health), Royal Borough of Kensington and Chelsea, Chair AMHP Community of Interest, The College of Social Work
- Moira Gilroy, Safeguarding Adults Manager, Oxford Health Foundation Trust, BIA
- Mala Karasu Safeguarding Adults Trusts Lead, Guy’s and St Thomas’ NHS Foundation Trust
- David Pugh, Mental Capacity Act and Mental Health Act implementation manager, Gloucestershire
- Mick Stanley, Mental Capacity Act/DoLS Lead Officer Barnsley MBC, Chair, Yorkshire & Humber Mental Capacity Act/DoLS Regional Network. We are particularly grateful to Mick for provision of case examples
- Kingsley Straker, Mental Capacity Act/Deprivation of Liberty Lead, Newcastle Hospitals NHS Foundation Trust
- Steve Vickers, Head of Service, Adult Safeguarding, Leicester
- Joseph Yow, Mental Capacity Act/DoLS Lead, Cambridgeshire