The Mental Health Act 2007 has amended the Mental Capacity Act 2005 introducing the deprivation of liberty safeguards from 1st April 2009. They were introduced to prevent breaches of the European Convention of Human Rights. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for vulnerable people in hospital or a care home registered under the Care Standards Act 2000, whether placed under public or private arrangements.
There is no single definition of a deprivation of liberty. However, in March 2014 two cases went before the Supreme Court these were:-
P v Cheshire West and Chester Council and another P and Q v Surrey County Council
The Supreme Court has clarified that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances:
The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.
The Supreme Court held that factors which are NOT relevant to determining whether there is a deprivation of liberty include the person’s compliance or lack of objection and the reason or purpose behind a particular placement. It was also held that the relative normality of the placement, given the person’s needs, was not relevant. This means that the person should not be compared with anyone else in determining whether there is a deprivation of liberty. However, young persons aged 16 or 17 should be compared to persons of a similar age and maturity without disabilities.
The deprivation of liberty safeguards apply to people:
They do not apply to people detained under the Mental Health Act 1983.
They apply to people who are in care homes and hospitals and since March 2014 they now apply to people in their own homes and supported living environments.
There are now two Deprivation of Liberty processes, and which process you follow depends where the person is living.
For the purposes of this process, hospitals and care homes (these are called Managing Authorities) have a duty to:
The council (is called the Supervisory Body) has a duty to:
For the purposes of this process, the Local Authority (Slough Borough Council) is the Managing Authority and has a duty to apply to the Court of Protection who is the Supervisory body for permission to continue to deprive someone of their liberty in supported living or in their own home.
The council (managing authority) has a duty to:
The Court of Protection (supervisory body) then has a duty to:
This is still a relatively new process and it is anticipated that there will be more guidance coming out from the Court of Protection over the coming year regarding more details about the process. In the meantime Slough Borough Council has produced a leaflet to explain this new scheme to providers and family, friends.
Slough Borough Council has one single point of entry for receiving all requests for a deprivation of liberty authorisation. The safeguarding team will co-ordinate all requests.
Once the managing authority (care home or hospital) has determined if an urgent or standard authorisation is required they must complete the relevant form/s and contact the DoLS administrator: