Mental Capacity Act 2005 Deprivation of Liberty Safeguards (MCA DoLS)

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What are Deprivation of Liberty Safeguards?

Some people living in hospitals and care homes can’t make their own decisions about their treatment and/or care because they lack the mental capacity to do so. They need more care and protection than others to ensure they don’t suffer harm. Treating and caring for people who need extra protection may mean restricting their freedom to the point of depriving them of their liberty.

The European Court of Human Rights has said that the rights of people who can’t make decisions and who need to have their liberty taken away in hospitals and care homes must be strengthened. People’s liberty should not be taken away if they can be cared for in a less restrictive way.

The MCA DOLS will protect people who can’t make decisions about treatment or care, who need to be cared for in a restrictive way. For example, some people who have dementia, a mental health problem or a severe learning disability.

The law says the MCA DOLS must be used if people need to have their liberty taken away in order to receive treatment and/or care that is in their best interests and protects them from harm.

Who is affected by Deprivation of Liberty Safeguards legislation?

People living in care homes or hospitals who are aged 18 and over and:

• suffer from a mental disorder; and
• lack the capacity to give consent to the arrangements made for their care or treatment in a care home or hospital, under public or private arrangements; and
• for whom a deprivation of liberty is considered, after independent assessments, to be a necessary and proportionate response in their best interests to protect them from harm; and
• for whom detention under the Mental Health Act 1983 is not appropriate for the person at that time.

Key terms

Managing Authority: the person or body with management responsibility for the care home or hospital in which a person is, or may become, deprived of their liberty

Supervisory Body: a local authority or a primary care trust, responsible for considering a deprivation of liberty request received from a Managing Authority, commissioning the statutory assessments and, where all the assessments agree, authorising deprivation of liberty

What does the law say hospitals and care homes must do?

Before thinking about applying for an authorisation, hospitals and care homes are expected to think about providing care in different ways which avoid depriving someone of their liberty

For every person living in the hospital or care home who lacks capacity, you should think about the following questions:

• Does the treatment and/or care being provided take away the person’s freedom to do what they want to do, to the extent that they are being deprived of their liberty?
• Do you believe that the treatment and/or care is in the person’s best interests?

If the answer to these questions is ‘yes’, you need to ask yourself whether the treatment and/or care could be given in a way which does not take away the person’s liberty.

If the answer to this question is ‘no’ and the person cannot be treated and/or cared for in any other way, a request for an authorisation must be made to the Wiltshire DoLS team, asking them to carry out assessments to decide if it is right to take away the person’s liberty.

Not every assessment will result in an authorisation. However, once a person in a hospital or care home has an MCA DOLS authorisation, a representative is appointed to support them and look after their interests.

The hospital or care home (together with Wiltshire Council or NHS Wiltshire) must:

• Make regular checks to see if the authorisation is still necessary
• Remove the authorisation where it is no longer necessary
• Provide the person who has an MCA DOLS authorisation and their representative with information about the authorisation and their rights and entitlements

If the person deprived of their liberty or their representative does not agree with the decision to deprive them of liberty, the new system gives them the right to appeal against the decision to the Court of Protection.

What if you are concerned that a family member of friend, who you believe lacks mental capacity, is being unlawfully deprived of their liberty?

• Please ring the DoLS Helpdesk on 01225 756598 and / or complete Letter 1 (click under LINKS – Forms and letters for eligible person) and send to the care home or hospital where the person is a resident

Who do you contact for the Independent Mental Capacity Advocate (IMCA) service?

Please ring SWAN Advocacy Network on 01722 341851 and speak with the IMCA lead or one of the other four trained IMCA advocates

Procedure for a Managing Authority (care homes and hospitals) to request an authorisation after due consideration – as from April 1st 2009

• Complete and sign Form 4 (standard authorisation) and / or Form 1 (urgent authorisation)
• Care home or hospital designated member of staff phones 0300 4560111 to say fax for DOLS authorisation is to be sent shortly
• Form 4 and / or form 1 faxed to 01225 713355 (safe haven fax within Social Care Helpdesk) and person sending fax keeps received receipt

Helpdesk

Families, carers and care homes – please ring 01225 756598

for

Hospital / hospice staff – please contact your Modern Matron or equivalent or your PALS staff for advice and information

Related documents

• DOLS Code of Practice 505kb
• Overview of DOLS process 22kb
• Guide for hospitals and care homes 144kb
• Guide for primary care trusts and local authorities 165kb
• Guide for relevant persons representative 137kb

Independent Mental Capacity Advocate

• Making decisions The IMCA service 336kb
• IMCA Referral Form 40kb
• IMCA DOLS leaflet 86kb

What does the law say hospitals and care homes must do:

Forms and guidance for managing authorities (care homes and hospitals)

• Form 1 - Urgent Authorisation 157kb
• Form 2 - Request extension of Urgent Authorisation 93kb
• Form 4 - Request for Standard Authorisation 239kb
• Form 14 - Suspension of a Standard Authorisation 116kb
• Form 15 - Notice that a suspension has been lifted 93kb
• Form 19 - Request for a review by the managing authority 105kb
• Urgent Authorisation info sheet 33kb
• Requesting a Standard Authorisation 40kb
• Requesting a formal review 20kb
• Suspending a Standard Authorisation 23kb
• Unauthorised Deprivation of Liberty info sheet 44kb
• What a managing authority should consider before applying for DOLS authorisation 494kb

What if you are concerened that a family...etc.:

Forms and guidance for an eligible person:

• "dols-letter1-letter-to-managing-authority-concerning-unauthorised-dol.rtf" alt="Letter 1 - Letter to managing authority concerning unauthorised DoL" border="0"
• "dols-letter2-letter-to-supervisory-body-concerning-unauthorised-dol.rtf" alt="Letter 2 - Letter to supervisory body concerning unauthorised DoL" border="0"
• "dols-letter3-letter-to-the-supervisory-body-requesting-a-review-from-a-person-subject-to-a-standard-authorisation.rtf" alt="Letter 3 - Letter to the supervisory body requesting a review from a person subject to a Standard Authorisation" border="0"

Related links

Useful websites for reference

• Department of Health
• Social Care Institute for Excellence

Last updated: 23 June 2010