The use of Deprivation of Liberty Safeguards (DoLS) is determined by both the Care Act 2014 and the Liberty Protection Safeguards (LPS) Code of Practice. The guidance within these documents is designed to support local authorities, commissioners and those working in health and social care in making decisions about when to use DoLS and how to go about this.
The Liberty Protection Safeguards (LPS) replaced DoLS in October 2020. LPS makes provision for a proportionate and liberal approach to the deprivation of liberty, providing safeguards to people who may be deprived of their liberty in care settings, whilst also recognising that any such deprivation should only be used as a last resort, when all other options have been exhausted.
The Care Act 2014 sets out the legal framework within which local authorities must provide services to people who need care and support, as well as those who provide care and support. It also sets out the statutory authority for DoLS, as well as introducing a number of new duties and powers for local authorities in relation to care and support, including around the use of DoLS.
The LPS Code of Practice provides guidance on how the deprivation of liberty safeguards should be used in care settings, as well as setting out the roles and responsibilities of those involved in the process. It is important to note that the Code is not legally binding, but provides good practice guidance that should be followed unless there are exceptional circumstances that mean it is not possible to do so.
The DoLS regime was introduced in 2009 in response to a ruling by the European Court of Human Rights in the case of Storck v Germany. The Court found that the German government had breached the right to liberty under Article 5 of the European Convention on Human Rights, as the safeguards in place at the time did not provide enough protection for people who were deprived of their liberty in care settings.
DoLS were introduced in order to ensure that people who are deprived of their liberty in care settings are protected from arbitrary or unlawful detention, and that any such deprivation is subject to independent scrutiny.
In order to obtain authorisation for the deprivation of liberty under DoLS, an application must be made to the local authority. The local authority must then carry out an assessment of the person’s case, taking into account a number of factors set out in the Care Act 2014, including the nature and duration of the proposed deprivation, the impact on the person’s wellbeing, and the likelihood of the deprivation being avoided.
The local authority must also take into account any representations made by the person or their family or friends, and must appoint an Independent Mental Capacity Advocate (IMCA) to represent the person if they lack the mental capacity to make their own decisions about the proposed deprivation.
If the local authority decides that the deprivation is necessary in order to protect the person’s health, welfare or safety, they must then apply to the Court of Protection for a deprivation of liberty order. The order must specify the care arrangements that will be put in place for the person, as well as the period for which the deprivation is authorised.
The deprivation of liberty order must be reviewed at least once every 12 months, and can be renewed for a further 12 months if the local authority believes that it is still necessary.
If you have concerns about the way in which DoLS are being used, or about the treatment of someone who is subject to a deprivation of liberty order, you can contact the Care and Support Inspectorate.