1. Introduction

The amendment to the Mental Capacity Act (MCA) 2005 (introduced by the Mental Health Act 2007) is to provide for procedures to authorise the deprivation of liberty of a person in a hospital or care home who lacks capacity to consent to being there. These are known as the Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS). The MCA principles of supporting a person to make a decision when possible, and acting at all times in the person’s best interests and in the least restrictive manner, will apply to all decision-making in operating the procedures.

The MCA DoLS cover:

  • How an application for authorisation should be applied for;
  • How an application for authorisation should be assessed;
  • The requirements that must be fulfilled for an authorisation to be given;
  • How an authorisation should be reviewed;
  • What support and representation must be provided for people who are subject to an authorisation; and
  • How people can challenge authorisations

Their purpose is to secure independent professional assessment of:

  • Whether the person concerned lacks the capacity to make his/her own decision about whether to be accommodated in a hospital or care home for care and treatment; and
  • Whether it is in his/her best interests to be detained

An assessment must be made as to whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised (either by the Deprivation of Liberty Safeguards (hospitals/care homes) or by the Court of Protection (domestic settings, such as supported living arrangements), and subject to regular independent checks.

Where the MCA DoL might be for the purpose of giving care or treatment, the DoL authorisation does not itself authorise treatment, Treatment in these circumstances may only be given with the person’s consent (if they have capacity) or in accordance with the wider provisions of the MCA. All deprivations of liberty must be in the person’s best interests with no less restrictive options.

The safeguards provide for independent assessment and rights to the person of review and appeal to the courts.


  1. Identifying Deprivation of Liberty

There is a difference between deprivation of liberty (which is unlawful, unless authorised) and restrictions on an individual’s freedom of movement.

Restrictions of movement (if in accordance with the Mental Capacity Act, 2005) can be lawfully carried out in someone’s best interest to prevent harm. This includes use of physical restraint where there is proportionate to the risk of harm to the person in line with best practice. Neither the Mental Capacity Act nor DoLS can be used to justify the use of restraint for the protection of members of staff or other service users or patients.

The difference between restriction of movement and deprivation of liberty is based on degree and intensity.


  1. Test for Deprivation of Liberty

The Supreme Court has clarified (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human rights where the person:

  • Is under continuous supervision and control; and
  • Is not free to leave; and
  • Lacks capacity to consent to these arrangements

The Court held that factors that are not relevant to determining whether there is a deprivation of liberty include: the person’s compliance or lack of objection; the reason or purpose behind a particular placement, and the extent to which it enables them to live a relatively normal life for someone with their level of disability.

This test is far broader than those set by previous judgements – disabled people should not face a tougher standard for being deprived of their liberty than non-disabled people.

The Supreme Court has held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This will include a placement in a supported living arrangement in the community. These  must be authorised by the Court of Protection.


  1. Authorising a Deprivation of Liberty

The DoLS process for obtaining a standard authorisation or urgent authorisation can be used where individuals lacking Capacity are deprived of their liberty in a hospital or care home.

The Court of Protection can also make an order authorising a deprivation of liberty; this is the only route available for authorising deprivation of liberty in domestic settings, such as supported living arrangements. This route is also available for complex cases in hospital and/or care home settings.

Individuals may also be deprived of their liberty under the Mental Health Act if the requirements for detention under the Act are met.


  1. Care Homes and Hospital Settings

Care homes and hospital wards have responsibilities under DoLS to ensure that none of the residents/patients are unlawfully deprived of their liberty, without the appropriate authorisation and that all authorisations are notified to the Care Quality Commission are monitored.


  1. Local Authority Role

DoLS authorisations will be issued, where appropriate, following statutory assessments by the Mental Health Assessor and Best Interests Assessor. Local authorities have responsibilities under the safeguards to:

  • Carry out the functions of the Supervisory Body as detailed in the DoLS Code of Practice;
  • Receive requests for authorisations from care homes and hospitals;
  • Commission statutory assessments, and grant Deprivation of Liberty authorisations where appropriate

The safeguards also apply to privately arranged care, i.e. self-funded residential care.

Local authorities have a responsibility to protect the human rights of all vulnerable people, particularly in reference to these safeguards, those who may be at risk of deprivation of liberty.

The Department of Health advice note (2015) stated that relevant staff in local authorities and care providers should ‘take steps to review existing care and treatment plans for individuals lacking Capacity to determine if there is a deprivation of liberty’ in light of the Supreme Court ruling. Where people are deprived of their liberty – and this is judged to be in their best interests – this must be authorised.


  1. Care Home and Hospital Roles

It is the responsibility of the care home manager or hospital to recognise that the care required may amount to a deprivation of liberty. If so, they must apply for an authorisation or reduce the restrictions so that deprivation of liberty is avoided.

DoLS authorisations will only be granted if:

  • It is in the person’s own best interests to protect them from harm;
  • It is a proportionate response to the likelihood and seriousness of harm; and
  • There is no less restrictive alternative


  1. How to avoid Unlawful Deprivation of Liberty

Hospitals and care homes are required to recognise when the use of the Mental Health Act, amended 2007, section 5 of the Mental Capacity Act 2005 or Deprivation of Liberty Safeguards 2009 is most appropriate.

Unlawful deprivation of liberty is unacceptable. If an organisation breaches this basic human right, the risks to the organisation could include: a court declaration that the organisation has acted unlawfully and breached the Adult at Risk’s human rights, a claim for compensation, negative press attention and regulatory action from commissioners and regulators.


  1. Requesting Authorisation

Care homes and hospital wards should request an authorisation when appropriate, using the standard forms (below). This can be done up to 28 days in advance of when they plan to deprive the person of their liberty.

DoLS Standard Authorisation Form 1 (Sunderland)

DoLS Standard Authorisation Form 2 (Sunderland)

Where a DoL is unforeseen, they may also grant themselves an Urgent Authorisation for up to 7 days, but must notify the Local Authority’s DoLS Team and apply for a standard authorisation at the same time.


  1. DoLS Assessment Process

Before a local authority can grant an authorisation, at least two separate assessors must carry out the following:

  1. Mental Health Assessment – to confirm whether the person has an impairment/disturbance of the mind or brain;
  2. Eligibility Assessment – to confirm the person’s existing or potential status under the Mental Health Act, and whether it would conflict with a DoLS authorisation;
  3. Mental Capacity Assessment – carried out by either the Mental Health or Best Interest Assessor to determine the person’s capacity to consent to the care proposed;
  4. Best Interest Assessment – to confirm whether the deprivation of liberty is occurring, whether it could be avoided and whether it is in the person’s best interest. They will also recommend how long the authorisation should last and who should act as a person’s representative throughout the period of authorisation;
  5. Age Assessment – to confirm the person is at least 18 years of age;
  6. No Refusals Assessment – to confirm whether there is aby valid advanced decision which would conflict with the authorisation or a person with a valid and registered Lasting Power of Attorney with authority over welfare decisions.

If any of the qualifying requirements are not met, the authorisation cannot be granted.

An authorisation can be granted for a maximum of 12 months, but will usually be agreed for a shorter time period as appropriate for the individual concerned.

An IMCA (Independent Mental Capacity Advocate) may be appointed during the assessment process if required.


  1. Role of the Relevant Person’s Representative

Everyone who is subject to an authorisation will be appointed a representative. They must maintain face-to-face contact with the person and represent and support them in all matters relating to the Deprivation of Liberty safeguards, including, if appropriate, requesting a review, or applying to the Court of Protection to present a challenge. The name of the representative should be recorded in the person’s health and social care records.

The representative has the right to request the advice and support of an IMCA.

If there is no family member, friend or informal carer suitable to be the person’s representative, the DoLS office will appoint a paid representative.


  1. Reviews

It is the responsibility of the care home or hospital ward to monitor and review the person’s care needs on a regular basis, and report any change in need or circumstances that would affect the deprivation of liberty authorisation or any attached conditions.

The care home or hospital must request a DoLS review if:

  • The relevant person no longer meets any qualifying requirements;
  • The reasons the person meets the qualifying requirements have changed;
  • Because of a change in the person’s situation, it would be appropriate to add, amend or delete a condition placed on the authorisation

The person or their representative may also request a DoLS review at any time.

The DoLS Service will commission assessors to carry out a review of an authorisation when statutory conditions are met. Statutory DoLS reviews will not replace health or social care reviews.


  1. Alerting unlawful Deprivation of Liberty

If a person (professional or otherwise) suspects unauthorised deprivation of liberty, they should discuss it with the care home manager/hospital ward manager. If the care home/hospital agrees that the care plan involves deprivation of liberty, they should be encouraged to make a request for authorisation.

All parties should be satisfied that the care plan is the least restrictive option available to keep the person safe, and that it is in the person’s best interest.

If the care home/hospital does not agree to make a request for a DoLS authorisation, the care manager/coordinator, or the individual, their family or interested party can then approach the DoLS office to discuss the situation and report the unlawful deprivation.


  1. DoLS and Safeguarding Concern Alerts

Deprivation of liberty can be in a person’s best interest if it is necessary to protect the person from harm, and is proportionate to the risk of harm. To be lawful, it needs to be authorised so that the person has access to the safeguards and is appropriately represented throughout the authorisation.

It may be appropriate to raise a safeguarding concern if there is also an allegation or concern of abuse, harm or neglect. If so, Sunderland’s Safeguarding Adults Procedures should be followed.


  1. Working with DoLS Best Interest Assessors

Best Interest Assessors and the DoLS Service will not, at any point, have responsibility for care planning or care management/coordination.

The DoLS Code of Practice points out that there is a particular need for care management/coordination if a Best Interest Assessor finds a service user/patient is being deprived of their liberty under their current care plan, but that care plan is  not seen to be in their best interest and the deprivation is not authorised. The care home/hospital ward needs to work with the care manager immediately to reduce restraint/restriction and ensure the person is not unlawfully deprived of their liberty.

The Best Interest Assessor’s report will explain their conclusion and aim to make useful suggestions to commissioners and providers in determining future action including recommending alternative approaches to treatment or care which would avoid deprivation of liberty. The Best Interest Assessor or other appropriate professional will discuss the possibility of any suggested alternatives with the providers of care during the DoLS assessment. This report should be kept on the person’s file.

The recommendations of the Best Interest Assessor should not be seen as a commitment or agreement to additional resources being provided by the commissioning agency. Any additional resources which are required should be requested by the care provider and presented to the relevant funding panel according to existing arrangements and procedures.

The care home/hospital need to record the steps that have taken to ensure the unauthorised deprivation of liberty does not continue. The Best Interest Assessor’s report should then be added to the person’s file/care plan.

The care manager will be asked to complete a review of the person’s needs and work with managing authority to propose and alternative care plan. If the care plan has funding implications, the care manager will present an application to the relevant funding panel or responsible commissioner, prior to a decision being made.

After an appropriate interval (no longer than one month) the DoLS Officer may arrange for a professional who has been trained to undertake best interest assessments to complete an independent review of the person’s care plan on behalf of the local authority, to confirm that there is no longer a deprivation of liberty. If a deprivation of liberty has continued unauthorised, the DoLS Office will consider whether to raise a Safeguarding Adults Concern.

If this is in the case of a proposed admission to residential care, the admission will need to be delayed until an alternative care plan is proposed that will not involve deprivation of liberty.

If the person is to be discharged from hospital, and considerations about potential deprivation of liberty are causing or contributing to delay in discharge planning, this should be discussed with the DoLS Office at the earliest opportunity. A placement from hospital into an appropriate care setting that is agreed to be in the person’s best interests should not be unduly delayed by the DoLS process.


  1. Domestic Settings

The Supreme Court has held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This will include a placement in a supported living arrangement in the community. Where there is, or is likely to be, a deprivation of liberty in such placements, it must be authorised by the Court of Protection.


  1. Further Information

For further information, including the Code of Practice and guidance see the Government’s Mental Capacity Act guidance webpages.

See also: 1.3.3 Deprivation of Liberty Safeguards (DoLS)