The Deprivation of Liberty Safeguards (DOLS)

1. The Deprivation of Liberty Safeguards (DOLS) The Deprivation of Liberty Safeguards (DOLS) are part of the Mental Capacity Act 2005 (MCA). They aim to make sure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom. The safeguards should ensure that a care home or hospital 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.

2. There have been major changes to the DOLS regime following the Supreme Court judgment in P v Cheshire West and Chester Council.

3. Prior to the judgment a service user in residential/nursing care, mental health hospital inpatient or in acute hospital, who lacked mental capacity, would only have a DOLS put in place if there was evidence of an objection or were actively trying to leave their care home or hospital or needed to be restrained.

4. However, this position has been turned on its head. The Justices argued that the ‘relative normality test’ was wrong and instead argued that human rights were universal. Therefore, the position now is that if a service user who lacks capacity to consent to their care and treatment and is ‘under continuous supervision and control’ and is ‘not free to leave the care home or hospital’, then they will be deprived of their liberty and thus a DOLS standard authorisation must be made.

5. In practice, this will have far-reaching consequences for Bexley and of course all local authorities. Following the above test, the effect now is that any service user in a care home or hospital who lacks capacity and is not free to leave (for whatever reason) will require a DOLS assessment.

7. Risks •Representatives of those who may satisfy the new test for DOLS, who have not been placed on a DOLS following the changes, may contemplate how to bring human rights claims for declarations of unlawful detention and damages. It is difficult to predict how this will eventuate and who will take action but legal firms are already seeking to engage individuals with mind to litigation where there is a breech. This could possibly lead to courts awarding compensation to individuals affected and local authorities being subject to public naming and associated fines/costs. Risk of increased CQC scrutiny of Managing Authorities and resultant criticism or Inspection of the Supervisory Body (LBB) Reputational risk for the London Borough of Bexley

8. “Ordinary residence” is crucial in deciding which local authority is required to meet the needs in respect of adults with care and support needs and carers. Whether the person is “ordinarily resident” in the area of the local authority is a key test in determining where responsibilities lie between local authorities for the funding and provision of care and support.

9. In this case, Lord Scarman stated that: ‘unless … it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.’

10. Local authorities must always have regard to this case when determining the ordinary residence of people who have capacity to make their own decisions about where they wish to live. For people who lack capacity to make decisions about their accommodation, an alternative approach is appropriate because a person’s lack of mental capacity may mean that they are not able to voluntarily adopt a particular place.