The Deprivation of Liberty Safeguards are the attempt by the Government to bridge the "Bournewood gap", so that all those lacking capacity deprived of their liberty within the meaning of Article 5(1)(e) have safeguards consistent with the requirements of Article 5(1) and 5(4).

Related cases

See the following categories:

• Category:Deprivation of liberty and Category:Capacity

The case which started it all was:

• HL v UK 45508/99 (2004) ECHR 471 — 'Informal' compliant incapacitated patient was deprived of his liberty, with lack of procedural safeguards or access to court, in breach of Art 5(1) and (4). [Detailed summary available on case page.]

Related legislation

• Article 5

• Mental Capacity Act 2005

The following is an automatically-generated list of the pages in Category:Mental Capacity Act 2005 secondary legislation - DOLS:

• Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009 (Commencement No 1 and Transitional Provisions) Order of Council 2009 — Yes, that is the real name. Among other over-complicated things, transitional arrangements relating to psychologist AMHPs and BIAs come into force on 1/7/09. Until 30/6/12, they can either be chartered psychologists (registered by the BPS) or psychologists registered by the HPC. It is expected that before the end of the transitional period the legislation will be amended to refer only to those registered by the HPC.
• Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) (Amendment) Regulations 2008 — In force 3/11/08.
• Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) (Wales) Regulations 2009 — In force 1/4/09 (subject to annulment).
• Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) Regulations 2008 — In force 3/11/08.
• Mental Capacity (Deprivation of Liberty: Assessments, Standard Authorisations and Disputes about Residence) (Wales) Regulations 2009 — In force 1/4/09 (subject to approval).
• Mental Capacity (Deprivation of Liberty: Monitoring and Reporting; and Assessments - Amendment) Regulations 2009 — In force 1/4/09, subject to approval by resolution of each House of Parliament. Relates to (1) the role of the Care Quality Commission in monitoring schedule A1 and (2) two amendments relating to (a) insurance/indemnity of assessors, and (b) recovery of expenditure between local authorities.
• Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 — In force 3/11/08.
• Mental Health Act 2007 (Commencement No. 10 and Transitional Provisions) Order 2009 — In force 1/4/09. This order brings into force the provisions in relation to IMHAs for England (they are already in force in Wales). It also commences the deprivation of liberty safeguards, and introduces transitional provisions: provided the applications are received on or before 30/4/09, 42 days (instead of 21) are allowed for completing assessments for a standard authorisation, and urgent authorisations last for 21 days (instead of 7); urgent authorisations given on or before 30/4/09 cannot be extended.
• NHS Bodies and Local Authorities Partnership Arrangements (Amendment) Regulations 2009 — These Regulations amend the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000 to include Schedule A1 to the Mental Capacity Act 2005 (the Mental Capacity Act Deprivation of Liberty Safeguards) as a function of NHS Bodies. This will enable primary care trusts to enter into formal partnership arrangements with local authorities. In force 1/4/09, immediately after the coming into force of the Mental Health Act 1983 (Independent Mental Health Advocates) (England) Regulations 2008

Details of the introduction of DOLS by the MHA 2007:

• Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005 (April 2009)

Other documents

• Mental Capacity Act 2005 Code of Practice Deprivation of Liberty Safeguards supplement

• Deprivation of Liberty Safeguards Standard Forms

• Mental Health Act 2007 Explanatory Notes - pages 35-42

Reporting a death

The text of Department of Health, 'Reporting the death of a person subject to an authorisation under the Mental Capacity Act Deprivation of Liberty Safeguards' (Gateway ref 15453, 19/1/11) is as follows:

There is currently no statutory requirement for anyone other than the Registrar of Births and Deaths (or a Prison Governor who has a separate statutory duty) to refer certain deaths to a coroner. These are deaths where there is reasonable cause to suggest that the person died a violent, unnatural or sudden death of which the cause is unknown or where the person died in prison or police custody. There is therefore no statutory requirement for the Registrar to refer deaths of those who are subject to deprivation of liberty safeguards.

However, there is a common law duty (which applies to everyone) to refer deaths to a coroner in the circumstances set out above. The subsequent action taken by the coroner will vary but could include no further action, the commissioning of a post-mortem examination or the opening of an inquest with or without a jury.

Should you wish to notify a death to a coroner, you should speak immediately to the Coroner’s office covering the district where the body lies and subsequently confirm your conversation in writing.

If a death is referred to a coroner, a doctor should not issue a Medical Certificate of Cause of Death until the coroner has made a decision about whether or not to undertake further investigation. This is not a legal requirement but it avoids the family thinking they can register the death before the coroner has made his or her decision.

Care homes and hospitals who are managing authorities under the Mental Capacity Act Deprivation of Liberty Safeguards, need to know how to contact the relevant coroner's office should a person in their care who is deprived of their liberty die whilst subject to that authorisation.

Some coroners have indicated that they expect managing authorities to refer to them all deaths of those who are deprived of their liberty under the Mental Capacity Act Deprivation of Liberty Safeguards. Supervisory bodies, local authorities and Primary Care Trusts, should ascertain what their local coroners’ expectations are in this regard and communicate that in turn to all the managing authorities that they liaise with.

If in doubt, it is always preferable to report the death as no harm can come from this cause of action, whereas not reporting the death can be problematic.

External links

Academic articles

• Ajit Shah et al, 'Deprivation of Liberty Safeguards in England: implementation costs' (2011) 199 BJP 232 (subscription only). 'Results: The estimated average cost of a single DoLS assessment was £1277. Conclusions: The estimated average cost of a single DoLS assessment was significantly higher than the £600 estimated by the government. However, the allocated budget, based on 20 000 estimated DoLS assessments in the first year of its implementation, is likely to be adequate because a significantly lower number of assessments (only 5200) were conducted in the first 9 months after its implementation.'

• Mithran Samuels, 'Deprivation of liberty safeguard cases cost double government's estimates' (Community Care, 30/9/11)

• Ruth Cairns et al, 'Judgements about deprivation of liberty made by various professionals: comparison study' (2011) 35 Psychiatrist 344 (subscription only). 'Aims and method: A group of lawyers, psychiatrists, best interest assessors and independent mental capacity advocates were asked to make binary judgements about whether real-life situations in 12 vignettes amounted to deprivation of liberty. Kappa coefficients were calculated to describe the level of agreement within each professional group and for the total group of professionals. Results: There was total agreement between all professionals about deprivation of liberty in only 1 of the 12 cases. The overall level of agreement for judgements made by all professionals was ‘slight’ (κ=0.16, P<0.01). Clinical implications: There are practical difficulties involved in making reliable deprivation of liberty judgements within the Deprivation of Liberty Safeguards (DoLS) legislation. A clear interpretation of deprivation of liberty is necessary to facilitate professionals’ decision-making in this area.'

• Laura Donnelly, 'Dementia patients let down despite promises' (Telegraph, 1/10/11)

• Jaspreet Phull, 'The Deprivation of Liberty Safeguards: observations and limitations' (2011) 51 Med Sci Law 187 (subscription only). Abstract: 'The recently introduced Deprivation of Liberty Safeguards (DoLS), which came into force in April 2009, was created to protect the liberty of people lacking capacity admitted to care homes and hospitals in England and Wales. This paper discusses observations and some limitations of the DoLS for protecting the liberty of residents within institutional settings. The regulation, safeguards and recent relevant case law are examined critically. The author suggests that their effectiveness may be limited by the under-recognition of cases, ambiguity and limited safeguards within the statute. The paper concludes that the DoLS legislation has been a positive step towards protecting the liberty of those lacking capacity but that limitations present could undermine the purpose of the legislation.'

• Ruth Cairns et al, 'Mired in confusion: making sense of the Deprivation of Liberty Safeguards' (2011) 51 Med Sci Law 228 (subscription only). Extract from abstract: 'Participants and setting Six eminent barristers and solicitors with expertise in mental health law attended a consensus meeting after making individual judgements about vignettes describing the situations of 28 incapacitated patients who had been admitted informally to a range of psychiatric inpatient units in South East London. Results Lawyers attributed key importance to a patient's ‘freedom to leave’ and suggested that patients' subjective experiences should be considered when identifying deprivation of liberty. Conclusions Clarification of deprivation of liberty and its safeguards will develop with future case law. Based on current available case law, the lawyers' expert views represented a divergence from Code of Practice guidance. We suggest that clinicians give consideration to this.'

• Antal Szerletics and Tom O'Shea, 'The Deprivation of Liberty Safeguards' (Essex Autonomy Project Briefing, December 2011)

• Essex Autonomy Project, 'Deprivation of Liberty and DoLS Roundtable Digest' (26/1/12). Presentations were given on 16/1/12 by Munby LJ, Alistair Pitblado, Dr Ruth Cairns, Neil Allen, John Leighton and Lucy Series.

Information booklets

The following are the main MCA DOLS information booklets:

• Deprivation of Liberty Safeguards: A guide for hospitals and care homes - 12/2/09

• Deprivation of Liberty Safeguards: A guide for primary care trusts and local authorities - 12/2/09

• Deprivation of Liberty Safeguards: A guide for relevant person's representatives

• Making decisions: The Independent Mental Capacity Advocate (IMCA) service

• Mental Capacity Act 2005 Deprivation of Liberty Safeguards: A guide for family, friends and unpaid carers - 6/3/09

• DH, 'What are the Mental Capacity Act Deprivation of Liberty Safeguards?' (15/12/08). 'This leaflet provides a brief general introduction to the MCA DOLS and has been specifically designed for care homes and hospitals to help staff understand what the MCA DOLS will mean for them and for their service users' (DH description). Oddly, given its target audience, it is also available in Arabic, Bengali, Chinese, French, Gujarati, Polish, Punjabi, Somali, Tamil and Urdu.

Other:

• Darent Valley Hospital: Translated leaflets. Various leaflets are available in Cantonese, Polish, Punjabi and Turkish

• Bristol City Council: Community (i.e. foreign) language leaflets. Leaflets are available in Arabic, Bengali, Chinese, Gujrati, Hindi, Punjabi, Somali, Urdu and Vietnamese

Newsletters

• Issue 3 (April 2009)

• MCA DOLS News - Issue 2 - published 26/11/08

DH website

• DH DOLS web page - This is the main port of call for up-to-date Government information on the safeguards.

• Dear Colleague letter: The NHS and people lacking mental capacity - 13/7/10 - This letter was sent as a result of the under-use of DOL Safeguards and IMCA services in places

• The Mental Capacity Act 2005 Deprivation of Liberty Safeguards – the early picture - published 25/5/10, dated April 2010 - This document discusses recently-published statistics, and deals with five practice issues entitled (i) The choice of the Relevant Person’s Representative (RPR), (ii) Where a DOL is not authorised, (iii) Setting conditions and effective care planning, (iv) The involvement of the Court of Protection in proposals of “no contact” with named individuals, and (v) Where an authorisation fails to resolve a dispute

• Lists of supervisory bodies' contact details: (1) PCTs; (2) local authorities. Updated very regularly - see main DH DOLS page (link above) for latest version

• Guidance on the completion of the Deprivation of Liberty Safeguards data collation sheet. The current version is 1.6 (16/12/10), superseding version 1.5 (28/6/10).

• Arrangements under paragraph 183(4) of Schedule A1 to the Mental Capacity Act 2005 between the Secretary of State and the Welsh Ministers - 1/4/09 - "[These arrangements] set out that where questions about a person's ordinary residence arise in relation to which local authority should act as the supervisory body, the Secretary of State will determine cross-border ordinary residence disputes between England and Wales where the person to whom the dispute relates is accommodated in a care home in England. The Welsh Ministers will determine cross-border disputes where the person to whom the dispute relates is accommodated in a care home in Wales."

• "DOLS and you" document - 31/3/09

• Dear Colleague letter: The Mental Capacity Act 2005 Deprivation of Liberty Safeguards (MCA DOLS) - 5/3/09 - "This letter from David Nicholson outlines roles and responsibilities for health and social care providers under the Mental Capacity Act 2005 Deprivation of Liberty Safeguards which 'go live' on 1 April."

• MCA DOLS and Section 75 partnerships under the National Health Service Act 2006 - 10/2/09

• Mental Capacity Act 2005 Deprivation of Liberty Safeguards: consultation on the Mental Capacity (Deprivation of Liberty: Monitoring and Reporting) and (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) (Amendment) Regulations 2009 - consultation from 19/12/08 to 30/1/09

• Mental Capacity Act (Deprivation of Liberty: Monitoring and Reporting; and Assessments - Amendment) Regulations 2009 - response to the consultation - published 23/2/09

• "What are the Mental Capacity Act Deprivation of Liberty Safeguards?" - introductory leaflet in English and various foreign tongues, published 15/12/08

Wales

NHS Wales MCA microsite:

• Welsh Guidance for Managing Authorities

• Welsh Guidance for Supervisory Bodies (copy)

• Supervisory bodies and managing authorities

Care Quality Commission

See also: CQC page

• CQC, 'The operation of the Deprivation of Liberty Safeguards in England 2009/10' (March 2011). The 'Issues Raised' are listed as: (1) the DH should consider developing clear, concise and practical briefings on what may constitute a 'deprivation of liberty' and when the Safeguards should be used; (2) staff should be trained effectively on the types of practice that may lead to deprivation of liberty, and should seek advice from their supervisory body in cases of doubt; (3) the move to regulation under the Health and Social Care Act 2008 will allow a monitoring role which is consistent across health and adult social care; (4) the DH should consider reducing the amount of paperwork required.

• CQC, 'Mental Capacity Act: Guidance for providers', October 2010

• CQC, 'Deprivation of liberty safeguards: guidance for providers', October 2010

HIW and CSSIW

See also: HIW and CSSIW pages.

• HIW and CSSIW DOLS reports. On 15/3/11 both the Healthcare Inspectorate Wales and the Care and Social Services Inspectorate Wales published documents entitled 'Mental Capacity Act 2005 Deprivation of Liberty Safeguards: Annual Monitoring Report for Health 1 April 2009 to 31 March 2010' together with various jointly-published documents.

'Chemical cosh'

• Tim Ross, 'Dementia doctors may face jail for using chemical cosh' (Daily Telegraph, 2/11/11)

• Pulse, 'Minister warns GPs could require PCT permission to prescribe antipsychotics - or face jail' (3/11/11). Health Minister Paul Burstow claims that 'Antipsychotic drugs prescribed against the evidence, without clear clinical justification, amount to a deprivation of liberty'.

• Mithran Samuel, 'Burstow bid to use Dols to curb antipsychotics use "draconian"' (Community Care, 10/10/11)

• Dept of Health, 'Speech: 1 November 2011, Paul Burstow, Dementia Congress' (2/11/11). Text of speech.

Other links

• London Borough of Barnet: DOLS Procedures and Forms overview chart - March 2009

• Mental Health Alliance: Deprivation of Liberty Safeguards: an initial review of implementation - 13/7/10 - This report is critical of the implementation of the DOL Safeguards

• John Leighton, 'Deprivation of liberty safeguards guide for care homes' (Community Care, 7/11/11)

• Mithran Samuel, 'Helping care home managers navigate the deprivation of liberty process' (Community Care, 10/11/11)

• BBC Radio 4: The Report: Deprivation of Liberty Safeguards. This programme, broadcast at 2000hrs on Thursday 24/11/11, discusses whether the DOLS are adequate, whether they are understood by care workers, and why they are so unevenly applied across the country.

• Mental Health Alliance, 'The Deprivation of Liberty Safeguards' (pre-publication draft of chapter of forthcoming report, 25/11/11). The key issues are stated to be: '(1) The DoLS scheme is not fit for purpose in its present form – implementation has been extremely uneven, with the result that the protections the scheme is supposed to afford to vulnerable people are effectively unavailable in large parts of the country; (2) Its review and appeals processes do not comply with the requirements of ECHR Article 5(4), largely negating its intended purpose; (3) The scheme is incredibly bureaucratic and wasteful of scarce professional resources, and the burdensome paperwork itself discourages use; (4) Nevertheless, where agencies have managed, with a great deal of effort, to make it work reasonably well, DoLS does perform a valuable protective function and has achieved at least some of the objectives set out for it, demonstrating that there is a need for a measure of this kind.'

• Jerome Taylor, 'Appeals soar after secret courts are opened to public' (Independent, 2/1/12)

• Mary Carolan, 'Voluntary mental patient not being held unlawfully' (25/1/12). This article describes what seems like a Southern Irish 'Bournewood' case.

Research

• See Department of Health#Research

Related books