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Deprivation of Liberty this is often known as DoLs or safeguards, is part of the Mental Capacity Act. The purpose of DoLs is to protect people in care homes or hospitals from being inappropriately deprived of their liberty. It ensures that restricting someone’s liberty is only completed safely and correctly and that it is done where there is no other way to take care of that person safely.

Where a person meets the following criteria, care can only be lawfully provided through seeking legal authorisation. The person must;

• Be 18 years of age or older. An individual under the age of 18 is protected under the Safeguarding of Children’s Act;
• Lack of capacity to consent to the arrangements for their care;
• Receive care where levels of restriction & restraint are so high that they are being deprived of their liberty;
• Be within the hospital and/or within a care home;
• Not have detention already authorised under the Mental Health Act.

Firstly we need to understand what is meant by ‘deprivation of liberty’. Explaining this is difficult as there is no legal definition as defined in case law. This is because it can vary depending on the individual’s condition or circumstance.

DoLs emphasises that ‘there is no simple definition of deprivation of liberty’, it quotes ‘the deprivation of a person’s liberty is a very serious matter and should not happen unless absolutely necessary, and in the best interests of the person concerned. That is why the safeguards have been created: to ensure that any decision is made following defined processes and in consultation with the correct authorities.

To understand the deprivation of liberties it helps to think about the word ‘restriction’. It may, therefore, be helpful to envisage a scale. Where an individual is on the scale will depend on the concrete circumstances of the individual and may change over time. The distinction between restriction and deprivation of liberty is one of degree and intensity rather than the nature of the substance.

DoLs must assess the actual situation of the individual concerned and consider a whole range of factors including type, duration, effects and manner the restrictions/restraints are implemented.

In considering DoLs it is important to consider Human Rights.
Article 5 of the Human Rights Act (HRA) 1998 gives UK citizens the right to liberty and security.

Deprivation of Liberty can be allowed in certain circumstances such as after a lawful arrest or when someone with a mental health difficulty is detained under the Mental Health Act. Even where such deprivation of liberty is allowed, it must be by a procedure prescribed by law such as an appeals system or Tribunal.

Safeguards came into force on the 1st of April 2009 and were designed to ensure that a person’s loss of liberty is lawful. There are three elements:

1. To provide the person with a representative
2. To allow a right of challenge to the Court of Protection against the unlawful deprivation of liberty
And 3. To provide a right for deprivation of liberty to be reviewed and monitored regularly.

Safeguards are more likely to affect older people staying in hospitals, residential care homes and residential nursing homes. It includes people with dementia who are informally admitted to a hospital or care home and are deprived of their liberty and do not have the mental capacity or the ability to make the decision about their care or treatment.

I mentioned the word informally and it is important to clarify what is meant by this. Informally means when someone who has NOT chosen to go to a hospital or care home but has been admitted by a relative, carer, or a figure in authority – such as a doctor or social worker. They are described as being ‘informally admitted’. Formally means by their own choice.

The law relating to Safeguards follows the principles of the Mental Capacity Act as stated earlier.