Deprivation of Liberty Safeguards

Sometimes it's in a person's best interests to have treatment in hospital, a hospice or a care home, even if they can't consent to it. When someone's personal freedom is restricted, this is called deprivation of liberty. Here, we talk about how someone's personal freedom may be restricted when they're ill. And the safeguards in place to protect their rights.

Someone is deprived of their liberty if they're:

There are laws which say that someone may be deprived of their liberty if they lack mental capacity, and it's assessed as being in their best interests. Mental capacity is your ability to make decisions.

Deprivation of liberty is a legal term. It's different from people making day-to-day choices on someone else's behalf. For example, a person living with a terminal illness may depend on other people. They may need someone else to do things like choose their clothes or what to have for dinner. This isn't deprivation of liberty in the legal sense.

A person may have a condition such as dementia or a stroke that affects their mental capacity. This means they may not be able to make decisions about their care or treatment. It may be in someone's best interests to stay in hospital, a hospice or care home to receive care. Someone might not be allowed to leave because they could come to harm if they stopped receiving the care they need. In this way, they're being deprived of their liberty.

The person, their friends and their family don't have to object to the decision for it to be deprivation of liberty. Even if friends and family are happy with a decision about the person's care or treatment, it's still deprivation of liberty.

The team responsible for the person's care must put safeguards in place when someone's freedom is restricted.

England, Wales and Northern Ireland have a process called Deprivation of Liberty Safeguards (DoLS). These are rules to make sure you remain safe, even if you're deprived of liberty. Scotland has other safeguards (see below).

Safeguards all have the same aims. These are to:

If a care home, hospital or hospice in England and Wales needs to deprive someone of liberty, they must request a Deprivation of Liberty Safeguard (DoLS) assessment.

In England, they request it from the local authority. In Wales, a hospital will request a DoLS from the local health board, and a care home will request it from the local authority.

The care homes, hospice or hospital should tell the person's family and friends that they are applying for a DoLS.

Two people carry out the assessment:

Together they assess the person's mental health and capacity and whether it's in their best interests to deprive them of liberty. The best interests assessor recommends a period of time for the deprivation of liberty order, which should be the shortest time possible.

Based on their report, the local authority (or local health board) decides whether to grant a deprivation of liberty authorisation.

The local authority or health board will aim to complete the assessment within 21 days of receiving the request. But it may take longer.

In an emergency, the care home or hospital staff can apply for an urgent authorisation which lasts seven days. This allows them to begin the deprivation before they've received an authorisation. If they need more time, they can extend the urgent DoLS by another seven days.

If a deprivation of liberty order is granted, the person must have someone to represent them. The representative's role is to liaise with the person and speak for them. They can ask for a review and make complaints on the person's behalf.

The person who has been deprived of liberty may choose their representative if they have mental capacity, or have a deputy for health and welfare. They may also have granted someone lasting Power of Attorney for health and welfare decisions.

Otherwise the best interests assessor will find someone. If there isn't a suitable family member or friend, the best interests assessor will recommend appointing an independent mental capacity advocate.

The Mental Capacity Act (Northern Ireland) 2016 has guidelines for how to recognise a situation when someone’s being deprived of liberty.

If a hospital or care home needs to deprive someone of liberty, they will inform the local Health and Social Care Trust. A panel from the trust, which will include three people with relevant expertise, will look at the case and authorise a deprivation of liberty. They must be satisfied that the person would be at risk of serious harm if they weren’t deprived of liberty.

The person must have an independent mental capacity advocate to represent them.

The Adults with Incapacity (Scotland) Act 2000 protects people who lack mental capacity.

The person may have a Power of Attorney, which is someone who can make decisions for them about their health and welfare. If they have a Power of Attorney, it will be registered at the Office of Public Guardian (Scotland).

A family member or friend can also apply to the sheriff court to become the person's guardian for welfare. The guardian's role is to speak up for the person and be their representative in decisions about their care. If there isn't a suitable friend or family member, a social worker from the local council can become the person's guardian.

The local council must appoint a social worker to support and supervise guardians. The social worker must visit the guardian within three months and then every six months. The Mental Welfare Commission for Scotland also provides help and support to guardians.

Healthcare professionals can also complete an S47 certificate of incapacity if they need to provide non-emergency treatment to an adult who lacks capacity. The healthcare professional must prove that the treatment complies with the Adults with Incapacity (Scotland) Act 2000.

If the person is in danger or needs medical attention, call the emergency services on 999.

If you’re concerned that a friend or family member is being abused or neglected, tell the person’s GP or social worker. You can also call the person’s local council (or Health and Social Care Trust in Northern Ireland) and ask to speak to the adult safeguarding coordinator.

To complain about someone's care, contact the care home, hospice or the local council. They'll have a procedure for dealing with complaints.

If you'd like to talk through your concerns, you can also call the charity Hourglass on 080 8808 8141.