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Deprivation of Liberty - Advice for Professionals



Article 5 of the Human Rights Act states: "everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty (unless) in accordance with a procedure prescribed in law."

The Mental Capacity Act outlines how an individual can be deprived of their liberty in order to care for them safely, and Deprivation of Liberty Safeguards (or DoLS) are one such procedure prescribed in law that is invoked to protect the peoples and ensure their loss of liberty is lawful. Care should always be provided in the least restrictive way possible, and those responsible for providing care should explore all options. 

DoLS are an amendment to the Mental Capacity Act 2005 that applies in England and Wales and can only be applied in a care/nursing home or hospital setting.

An individual is deprived of their liberty for the purposes of Article 5 of the European Convention on Human Rights if they:

  • lack the capacity to consent to their care/treatment arrangements 
  • are under continuous supervision and control 
  • are not free to leave.

There are six criteria that needs to be assessed before DoLS can be authorised by the local authority:

  1. Is the individual aged 18 years or above as required?
  2. Does the individual have a mental health disorder (this includes dementia)? 
  3. Does the individual have the capacity to make their own decisions regarding treatment? 
  4. Is the use of DoLS in the individual’s best interest? Namely, will it keep them safe from harm?
  5. Does the individual meet the requirements for detention under the Mental Health Act 1983? (This would make them ineligible for a standard authorisation)
  6. Has the individual made any advanced decisions about their treatment? Is there any previous authorisation that would conflict with the authorisation of DoLS?

Once a request for DoLS has been made, a decision must be made within 21 days as to whether the person can be deprived of their liberty. If authorisation is given, one key safeguard is a person is appointed with legal powers to represent the individual – this will usually be a family member or friend. Another important safeguard is access to independent mental capacity advocates.

DoLS provides a framework by which a challenge can be made through a review procedure or in the Court of Protection if the deprivation of liberty is perceived as unlawful.

To challenge a deprivation of liberty order, you can:

  • appeal to the Court of Protection
  • ask for a review of the authorisation
  • get support from an independent mental capacity advocates (IMCA).

The Safeguarding Adult Boards across SET (Southend, Essex and Thurrock) have updated the Mental Capacity Act/Deprivation of Liberty Safeguards (MCA/DoLS) Policy and accompanying Guidance and Mental Capacity Assessment Form.

Deprivation of Liberty Safeguards – Advice for Professionals

If you provide care to someone who does not have capacity to consent to care and treatment in a care home or hospital and you believe the care provided meets the ‘acid test’ because the person is under continuous supervision and control AND is not free to leave, then a referral under the Deprivation of Liberty Safeguards is required.

Urgent Authorisation

You can request an Urgent Authorisation by:

bullet point Hand delivering forms to Southend-on-Sea Borough Council, Civic Centre, Victoria Avenue, Southend-on-Sea, Essex, SS2 6ER
bullet point Emailing them to Adult Social Services at SAB@southend.gov.uk (files should be password protected)
bullet point Faxing them to 01702 534794

Standard Authorisation

You can request a Standard Authorisation by:

bullet point Emailing them to Adult Social Services at SAB@southend.gov.uk (files should be password protected)
bullet point Faxing them to 01702 534794

Deprivation of Liberty Safeguards – Advice for The Public

The Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005. They aim to make sure that people in care homes, hospitals and supported living are looked after in a way that does not inappropriately restrict their freedom. The safeguards should ensure that a care home, hospital, or supported living arrangement only deprives someone of their liberty in a safe and correct way, and that this is only done when it is in the best interests of the person and there is no other way to look after them.

Who is affected?

The safeguards apply to vulnerable people aged 18 or over who have a mental health condition (this includes dementia), who are in hospitals, care homes and supported living, and who do not have the mental capacity (ability) to make decisions about their care or treatment. The Mental Capacity Act says that someone who lacks mental capacity cannot do one or more of the following four things:

bullet point understand information given to them
bullet point retain that information long enough to be able to make a decision
bullet point weigh up the information available and understand the consequences of the decision
bullet point communicate their decision – this could be by any possible means, such as talking, using sign language or even simple muscle movements like blinking an eye or squeezing a hand

What are the safeguards?

Those planning care should always consider all options, which may or may not involve restricting the person's freedom, and should provide care in the least restrictive way possible. However, if all alternatives have been explored and the hospital, care home or local authority administrating the supported living arrangements believes it is necessary to deprive a person of their liberty in order to care for them safely, then they must get permission to do this by following strict processes. These processes are the Deprivation of Liberty Safeguards, and they have been designed to ensure that a person's loss of liberty is lawful and that they are protected. The key elements of the safeguards are:

bullet point to provide the person with a representative
bullet point to give the person (or their representative) the right to challenge a deprivation of liberty through the Court of Protection
bullet point to provide a mechanism for deprivation of liberty to be reviewed and monitored regularly

If you feel someone is being deprived of their liberty

If you feel that someone is being deprived of their liberty, speak to the person in charge. In hospital this may be a doctor, nurse or administrator; in residential care it will be the care home manager; for supported living this should be the social worker. Try to agree on changes that can be made so that the person's freedom is less restricted. If the manager of the care home or the person in charge in the hospital believes that what they are doing is necessary to keep the person safe, they must apply for a deprivation of liberty authorisation. You may be in a situation where there is no deprivation of liberty authorisation in place for care in a care home or hospital, and the manager does not think that such an authorisation is necessary. In this case, you can approach the local authority (Southend Borough Council) and ask them to investigate whether an unlawful deprivation of liberty has occurred. Tel: Southend Borough Council Adult Social Care 01702 215008.

In an emergency
call 999

To report a non-urgent incident or crime to the Police
call 101

If you have concerns about a child, call Southend's Multi-Agency Safeguarding Hub Plus ‘MASH+’ on 01702 215007
Select Option 1 and then either: Option 1 for professional advice; Option 2 for a specific social worker; OR Option 3 for MASH+ administration.

If you have concerns about an adult, call Southend's Access Team
01702 215008 option 1

To report concerns outside of office hours, call Emergency Duty Team
0845 606 1212