Deprivation of Liberty Safeguards (DOLS)
A moment’s thought makes clear that a resident in a dementia specialist care home other than an individual in the earliest stages of the disease is effectively deprived of their liberty. They cannot leave of their own free will because the doors have key pad entry systems for security and if somehow they did get through a door there would be someone at the ‘front desk’ to prevent them leaving. They are deprived of their liberty.
DOL is clearly in contravention of Article 5 of the Human Rights Act which makes clear that all people have a right to liberty. An amendment to the Mental Capacity Act (2005) provides for a procedure in law (DOLS) whereby a person can be deprived of their liberty if it is deemed to be in their best interest. This only applies in England and Wales and to residents in care homes and hospitals who lack the mental capacity to consent to the care and treatment they require to keep them safe. In any other residential situation a relevant authority would have to apply to the Court of Protection if it considered the liberty of an individual needed to be curtailed for their own safety.
Deprivation of Liberty is said to exist if an individual is not allowed to leave a residence and is subject to continuous supervision. It is the responsibility of the manager of a care home to apply for what is known as a standard authorisation for a resident of their community. This is sent to a supervisory body within the local authority that has twenty-one days in which to make a decision. The key conditions which have to be met are that an individual lacks capacity and it is in their best interests for their liberty to be withdrawn.
The supervisory body appoint at least two independent assessors to each case who have been fully trained in the roll. One at least will be a mental health assessor and a second will be a best interest assessor. Family and or friends are encouraged to be part of the process and if none such are available the supervisory body must appoint an Independent Mental Capacity Advocate (IMCA). The assessors will meet the resident in the relevant care home/hospital and talk with them (as far as possible) and their family and carers.
If a standard authorisation is granted manager there are yet more safeguards and in particular a relevant person’s representative is appointed – usually family or friend. Again if none is available the supervisory body must appoint and pay someone to carry out that duty. The relevant person can at any time challenge a standard authorisation in the Court of Protection.