Protecting others with Deprivation of Liberty Safeguards
Under the Human Rights Act 1998, everyone has the right to liberty and security of person. This, in theory, is ideal. However, there are some limited instances where, for their own protection, people need protecting from themselves and the care they receive might mean that they are no longer free to make their own decisions.
Having to move a relative or friend into a care home because they have lost or are losing the capacity to manage on their own, is a really stressful and traumatic time – as anyone who has been involved in this process will no doubt testify. It often feels like you are taking away all of their freedoms, even though you know that they would not be safe on their own any more. In these situations, the Deprivation of Liberty Safeguards ("DoLS") procedure is designed to protect the rights of those in need of care which involves being detained in a hospital or care home in England or Wales.
If the care is provided by other health and care services outside of hospitals and care homes, such as supported living services, the application to deprive someone of their liberty should instead be made to the Court of Protection.
In 2014, the cases of P v Cheshire West and Chester Council and another and P and Q v Surrey County Council went to the Supreme Court where they decided that at DoLS should be looked at in relation to three key questions:
- Is this person subject to continuous supervision and constraints?
- Is that person free to leave?
- Does that person lack the mental capacity to consent to the treatment they are receiving?
The first of these questions is relatively straightforward to assess but the second is more difficult. The person may not actually have any wish or desire to leave the safe environment they are in, but the questions have to look at whether it would be possible for them to leave and how the people caring for them would react if they tried to leave.
Where the answers to these questions suggest a deprivation of liberty, care homes and hospitals must apply to local authorities to ask if they can deprive someone of their liberty. Each case will be looked at on its own individual merits so it is not a "one size fits all" assessment.
If you think that these facts apply to your relative or friend, you should raise this with the care provider and ask whether they have considered the need for a DoLS application in relation to their care. It is ultimately the responsibility of the care home or hospital to ensure that any derivation of liberty is lawful. Data from NHS Digital confirms that 195,840 DoLS applications were made in 2015/16, of which 76,530 were approved so there is a good success rate of those looking to protect vulnerable adults.
Upon receiving such an application, the local authority must make sure that a number of specific assessments are carried out before granting authorisation. However, there are instances where a hospital or care home can grant an urgent authorisation for a short timeframe but this should only be used in exceptional cases.
The Care Quality Commission (CQC) reported in The state of health care and adult social care in England 2015/16 that whilst the vast majority of adult social care providers, including care homes, were not meeting the DoLS and wider Mental Capacity Act (MCA) 2005 requirements when they first inspected, there has been a general improvement in the level of service provided now.
If you already have a relative in care or are going to have to look into finding a care provider and believe that DoLS might be an issue, the CQC found that a culture of person centred care, good leadership and robust policies and documentation of DoLS procedures (and the wider MCA) were all common factors in the provision of correct application of DoLS. As such, these would certainly be good areas to ask about when looking for a suitable provider. Don't be afraid to ask about whether they are experienced in these areas or to see a copy of their procedures as it could make the difference to your loved one.
If you any questions about the issues raised in this article, please contact Laura Harper or another member of the Succession and Tax team.