Deprivation of Liberty Safeguarding
Some people living in hospitals and care homes can not make their own decisions about their care and/or treatment because they lack the mental capacity to do so. They need more care and protection than others to ensure they don't suffer harm. In order to do this individuals who lack this capacity on these issues may need to have restrictions on their liberty. Equally an individual's liberty should not be taken away if they can be cared for in a less restrictive way.
Sometimes we have to place restrictions on people for their own safety. There are different levels of restriction ranging for example, from a locked door to physical restraint.
At some point the degree and intensity of these restrictions become what is legally known as a deprivation of liberty. Deprivation of Liberty Safeguards provide legal protection for vulnerable people who may be deprived of their liberty in a hospital (other than under the Mental Health Act 1983) or in a care home, whether placed there under public or private arrangements.
The Deprivation of Liberty Safeguards can only be used if the person will be deprived of their liberty in a care home or hospital. In other settings the Court of Protection can authorise a deprivation of liberty
On this basis the Mental Capacity Act 2005 was extended in April 2009 to include these extra legal safeguards: Deprivation of Liberty Safeguards (MCA DOLS).
The Supreme Court judgment of 19 March 2014 in the case of Cheshire West clarified an “acid test” for what constitutes a “deprivation of liberty”.
The acid test states that an individual is deprived of their liberty for the purposes of Article 5 of the European Convention on Human Rights if they:
· Lack the capacity to consent to their care / treatment arrangements
· Are under continuous supervision and control
· Are not free to leave
All three elements must be present for the acid test to be met.
The Mental Capacity Act Deprivation of Liberty Safeguards applies to anyone:
- aged 18 and over
- is currently resident in a care home or hospital
- who suffers from a mental disorder or disability of the mind - such as dementia or a profound learning disability
- who lacks the capacity to give informed consent to the arrangements made for their care and / or treatment.
Deprivation of Liberty safeguarding documents
Hospital : briefing letter
Care home : briefing letter