For those of you who support and visit loved ones in hospital or care homes, you may have been asked or informed that they are subject to a DOLS order. DOLS is an abbreviation for “Deprivation of Liberty Safeguards.” Such orders are required when a person lacks capacity to make their own decisions and are required to remain in a place of safety.
For obvious reasons care providers are not legally permitted to lock their doors and prevent residents from leaving because this could be deemed to be false imprisonment. However, many care homes and hospital wards do have a locked door policy with only keypad or door entry systems.
What many people do not appreciate and indeed some institutions, is that such systems are only legally permitted on the basis of ensuring each individual has been assessed and permission granted to in effect detain a person for reasons granted by an order for their own safety and in their best interests. Where an order is not in place then this would be deemed to be unlawful.
The Deprivation of Liberty Safeguards is an amendment to the Mental Capacity Act 2005. They apply in England and Wales only. The Mental Capacity Act allows restraint and restrictions to be used – but only if they are in a person’s best interests. Extra safeguards are needed if the restrictions and restraints used will deprive a person of their liberty. These are referred to as the Deprivation of Liberty. The current legislation has only permitted such safeguards to be used if the person is in specific care settings, notably a care home or hospital. These institutions must seek permission from the Local Authority in order to deprive a person of their liberty. This is referred to as a request for “Standard Authorisation.” There are six assessments which have to take place before a standard authorisation can be granted.
If a standard authorisation is given, one likely safeguard is that the person has someone appointed with legal power to represent them. This is called the “relevant person’s representative” and will usually be a family member or friend. Other safeguards include rights to challenge authorisation in the Court of Protection, and access to Independent Mental Capacity Advocates (IMCA).
In July 2018 the Government published a Mental Capacity (Amendment) Bill which will see DOLS replaced by the Liberty Protection Safeguards (LPS). The new system comes into effect in April 2022 and therefore it is essential for both care providers and individuals are aware of their rights. There are many significant changes not least that such safeguards will include “any” common setting including the person’s own home. This may include foster homes and residential college placements.
The current DOLS only applies to one setting and lapses automatically if the person moves. The new LPS will cover authorisation of different settings, e.g. home and respite care or for planned hospital admission.
The current six assessments will be replaced with three assessments under the headings of “Mental Capacity, Mental Decisions, Necessary and Proportionate.” This will make it far easier to use valid existing assessments such as those carried out for Care Act purposes.
A variety of professionals can now contribute to such assessments and a new role of an Approved Mental Capacity Professional (AMCP) will be created under the new legislation. To protect a person’s rights a pre-authorisation review must take place, they must meet the person whenever there is reason to believe that person does not wish to stay in the proposed setting, and in all cases where the proposed setting is an independent hospital.
One key point of note is that the current appointment of a Relevant Person’s Representative (RPR), usually a family member, can also be a paid advocate selected by the local authority to ensure the person’s wishes and feelings are paramount and to support the person and help them to challenge the authorisation.
From April 2022 this will become an “Appropriate Person” and must never include payment. The responsible body could also be a local authority or NHS body when arranging this process.
What this means is that families need to be informed and vigilant of their rights and knowledge of the revised legislation as potentially many more individuals may be subject to such restraints. Seeking advice and support may become increasingly necessary to ensure a person’s human rights under Article 5 of the Human Rights Act. The Act states, “Everyone has the right to liberty and security of reason. No one shall be deprived of his or her liberty (unless) in accordance with a Procedure prescribed in Law.”