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).
Academic articles etc
- 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.'
- 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.'
The following are the main MCA DOLS information booklets:
- 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.
- DH DOLS web page - This is the main port of call for up-to-date Government information on the safeguards.
- 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
- 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.
NHS Wales MCA microsite:
Care Quality Commission
See CQC page for links.
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.
See L v Clinical Director of St Patrick's University Hospital (2012) IEHC 15, (2012) MHLO 36 for external links
- 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.'
Richard Jones, Mental Capacity Act Manual (6th edn, Sweet & Maxwell 2014)
Peter Bartlet, Blackstone's Guide to the Mental Capacity Act 2005 (Oxford 2008)