A deprivation of liberty is when someone has their freedom limited in some way. A deprivation of liberty may occur when someone lacks mental capacity to consent to their care arrangements, the person is under continuous supervision and control, and is not free to leave, which includes physical restrictions such as locked doors, being prevented from leaving in some other way or would be brought back if they did leave.
The Deprivation of Liberty Safeguards, referred to commonly as DoLS apply to people who may have physical or mental disabilities, are in a hospital, care or nursing home, and it is in their best interests to be deprived of their liberty in order to keep them safe.
Applying for authorisation
The care home or hospital is responsible for making a DoLS application if there is the possibility care or treatment provided by them will deprive someone of their liberty. The process involves the care home or hospital to making an application to the local authority for a standard or urgent authorisation. A standard authorisation can be given for a maximum of 12 months. On expiry of the period, the nursing home would have to apply for another authorisation.
A DOLS will only be authorised where it is shown that a person lacks mental capacity to make decisions concerning his/her care and treatment. The DOLS is required in these circumstances because the resident/patient lacks mental capacity to agree to being kept in the home or hospital. In order for a DOLS to be authorised, the local authority must ensure that a number of different assessments are carried out. Only if those assessments show that the resident lacks capacity to make decisions for care and treatment, and that it is in the best interests of the resident to remain in the home or hospital, will the DOLS be authorised.
Mental capacity is both time and decision specific, meaning that (a) a person may lack capacity to make a decision on one day, but have capacity to make that decision on another day and (b) a person may on the same occasion have capacity to make one decision but not another.
Challenging a DoLS – case study
We were contacted by Mrs S whose husband (Mr S) was in a care home following a stroke. He had been assessed as lacking capacity and a DoLS put in place. After a period of time, Mr S made a little progress and Mrs S wished to take him home to continue his rehabilitation and care. However, the DoLS meant that she could not take him home permanently without the DoLS being challenged or the local authority agreeing that it was in his best interests to return home and for the DoLS to be discharged.
Our member firms were asked to advise and recommended the following steps:
- Make enquiries as to when the DoLS expires and if soon, to enquire as to whether the home envisaged applying for another DoLS. If it does, Mrs S should ensure she is fully involved in the process and, if necessary, seeks assistance both from a qualified capacity assessor and lawyer.
- If the DoLS does not expire soon, Mrs S could engage assistance from a lawyer and capacity assessor to ascertain if her husband has regained capacity to make his own residency and care and treatment decisions. If that process confirmed that he has regained capacity, the evidence could be put before both the home and the authority with a request that the DoLS be revoked. If the request were refused, an application could be made to the Court of Protection for a ruling.
- If the DoLS was revoked, it will be up to Mr S to decide for himself where he lives and receives any treatment and care.
In the meantime, if Mrs S wishes to take her husband home for a short visit, for a few hours at a time, this could be discussed with the home and social worker and it is possible to agree this whilst Mr S remains under a DoLS.
How can Brain Injury Group assist?
Among our membership, we have a number of Court of Protection specialists who will be able to assist with matters related to DoLS. If you would like a free no-obligation chat, contact us by phone (0330 311 2541), email (enquiries@braininjurygroup.co.uk) or access live chat on our website between the hours of 9am and 7pm Monday to Friday, and 9 am until 4pm at weekends.
