Deprivation of Liberty Safeguards
Revision as of 20:42, 5 September 2018 by Jonathan
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) in hospitals or care homes have safeguards consistent with the requirements of Article 5(1) and 5(4). This page also contains information about deprivation of liberty more generally (not just DOLS). The proposals in the Mental Capacity (Amendment) Bill would replace the Deprivation of Liberty Safeguards (DOLS) with Liberty Protection Safeguards (LPS).
- Court of Protection
- 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
- Case law in this area: Category:Deprivation of liberty
- Article 5
- Mental Capacity Act 2005
- Legislation: Category:Mental Capacity Act 2005 secondary legislation - DOLS
- Details of the introduction of DOLS by the MHA 2007: Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005 (April 2009)
Academic articles etc
- 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.'
- 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.'
- 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.
- Nazreen Pearce and Sue Jackson, 'Supplement to Urgent Applications in the Court of Protection' (29/7/14). This supplement to the Deprivation of Liberty chapter of 'Urgent Applications in the Court of Protection' analyses the Supreme Court judgment in Cheshire West. The book is available here: ·
- Lady Hale, 'The Other Side of the Table?' (speech to Mental Health Tribunal Members Association, 17/10/14)‡
- Jonathan Wilson, 'Safeguards against What? A critical analysis of the Deprivation of Liberty Safeguards' (LLM dissertation, 28/8/13)
- Peter Bartlett, 'Reforming the Deprivation of Liberty Safeguards (DOLS): What Is It Exactly that We Want?' (2014) 20(3) Web JCLI†
- Alex Ruck Keene et al, 'Deprivation of liberty: a practical guide' (Law Society, 9/4/15)†. Law Society summary: "The Law Society has issued comprehensive guidance on the law relating to the deprivation of liberty safeguards. The safeguards aim to ensure that those who lack capacity and are residing in care home, hospital and supported living environments are not subject to overly restrictive measures in their day-to-day lives. The guidance was commissioned by the Department of Health and aims to help solicitors and frontline health and social care professionals identify when a deprivation of liberty may be occurring in a number of health and care settings. It uses case scenarios to explain the law following the landmark judgment of the Supreme Court in the case of Cheshire West (2014). The complete guidance is available below. You can also download individual chapters relating to specific care settings. Quick reference sheets also highlight relevant liberty restricting factors and key questions for practitioners relating to each individual setting." The guidance contains the following chapters: (1) introduction; (2) the law; (3) Cheshire West; (4) the hospital setting; (5) the psychiatric setting; (6) the care home setting; (7) supported living; (8) at home; (9) under 18s; (10) summaries of key cases; (11) further resources.
The following are the main MCA DOLS information booklets:
- 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.
- 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
- MCA DOLS News - Issue 2 - published 26/11/08
- 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."
- 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
- Department of Health, 'Deprivation of Liberty Safeguards (DOLS) Funding Factsheet for 2013-14' (25/9/12)†
- 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) (click 'Expand' to see full text)
- 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.
Care Quality Commission
See CQC page for links.
HIW and CSSIW
- 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.
- CSSIW and HIW, 'Deprivation of Liberty Safeguards: Annual Monitoring Report for Health and Social Care' (February 2012). An information brief and table of statistics is also available. For a discussion of this report, see Mithran Samuel, 'Latest on the Deprivation of Liberty Safeguards in Wales' (Community Care Adult Care Blog, 13/2/12)
- CSSIW and HIW, 'A National Review of the use of Deprivation of Liberty Safeguards (DoLS) in Wales' (2014)†
- 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.
See L v Clinical Director of St Patrick's University Hospital (2012) IEHC 15,  MHLO 36 for external links
- 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
- 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.'
- Mithran Samuel, 'Many deprived of liberty without safeguards, warn experts' (29/2/12). This article discusses deprivation of liberty in supported living, and the Official Solicitor's view that the Court of Appeal decisions in Cheshire and P & Q meant protections for people 'had gone backwards'.
- Jerome Taylor, 'Huge spike in use of controversial new 'deprivation of liberty' orders despite critics arguing they are not fit for purpose' (Independent, 18/7/12)
- Amanda Keeling, 'The right to review of a deprivation of liberty' (Nottingham Institute of Mental Health Blog, 16/8/13)
- Cornwall Council, 'Deprivation of Liberty Safeguards - Time Study' (closes 21/8/15). Cornwall Council are conducting an anonymous survey of BIAs nationwide to find out how long their assessments are taking. The survey is being conducted in light of concern that any post-Cheshire 'time standards' implemented by local authorities would erode BIAs' independence and the quality of assessments.
Our survey link – https://www.surveymonkey.com/r/DOLS-time-survey
Currently there appears to be very little evidence about the time it takes for Best Interests Assessors (“BIA”) to complete individual assessments. The DOLS team at Cornwall Council are keen to learn more about the time it takes BIA’s to complete their assessments and any ‘time standards’ they may have to work within.
The Supreme Court's decision in Cheshire West (see Cheshire West and Chester Council v P  UKSC 19,  MHLO 16) brought a momentous change to practice for Best Interests Assessors (“BIA”), whose role is central in assessing for the Deprivation of Liberty Safeguards ("DOLS").
With a growing number of outstanding DOLS referrals and pressures to meet those demands some local authorities are beginning to implement ‘time standards’ for BIA’s when conducting their assessments. Whilst this may be positive for case turnover there are concerns it will erode the independence of the BIA and has a direct impact on the overall quality of their assessments which require them to obtain, evaluate and analyse complex evidence and differing views and weigh them appropriately in their decision-making.
For the best results we need a large pool of respondents to ensure that the findings are transferable and hope that you can circulate this email and the survey link to teams, individual practitioners and independents and others.
The survey is aimed directly at Best Interests Assessors (“BIA”), we don’t ask for any personally identifiable information and the format of the survey is simple so it won’t take up to much time.
Survey closes 21st August. We aim to share the results and we will be posting to social media sites with a specialist interests in this area and via the DOLS lead network.
Please take our survey - https://www.surveymonkey.com/r/DOLS-time-survey
Check out some of our great press too!
Paul Wilkins (DOLS Lead) – email@example.com
Emma Goodall (AMHP/BIA) – firstname.lastname@example.orgThank you!
- Cornwall Council, 'Deprivation of Liberty Safeguards - Time Study' (closes 4/9/15). Cornwall Council have decided to extend the deadline for completion of their survey until 4pm on Friday 4/9/15. During the original period there were almost 400 responses, the breakdown being: (a) 72% BIAs, 28% AMHP/BIAs; (b) 87% social workers, 3% OTs, 9% nurses, 1% psychologists. It is hoped that at least 500 people will respond overall.
- Emma Goodall and Paul Wilkins, 'The Deprivation of Liberty Safeguards: A Best Interest Assessor Time Study' (Cornwall Council, November 2015)‡. The average time taken per DOLS assessment by the 507 respondents to this survey is 12.1 hours.