Deprivation of Liberty Safeguards (DOLS)

The proposals are in response to the 2004 European Court of Human Rights judgement involving an autistic man who lacked the capacity to consent who was kept at Bournewood Hospital by doctors against the wishes of his carers. The court found that he had been deprived of his liberty unlawfully, and the Department of Health committed to introducing new legislation to close the 'Bournewood gap'.

The proposal will apply to people in hospitals or care homes. People likely to be affected by these proposals are mainly those with learning disabilities, or elderly people with dementia, but also a minority of other poeple who lack capacity to consent to where they receive care or treatment.

Key features

• from April 2009 hospitals and care homes will have a duty to identify anyone at risk from deprivation of liberty and, if they do not consider that a less restrictive regime is possible, request an authorisation from the supervisory body.
• the supervisory body is the Local Authority in the case of a care home or the Primary Care Trust in the case of a hospital.
• it will be unlawful for a hospital or care home to deprive a person of liberty without obtaining an authorisation.
• the supervisory body will commission assessments.
• there will be six different types of assessment.
• authorisation should be obtained in advance, except where it is thought to be urgent.
• it will be possible to challenge deprivation of liberty by applying at any time to the Court of Protection.

The Government's Regulatory Impact Assessment document suggests that up to 20,000 people in hospitals and care homs may require a Deprivation of Liberty authorisation. These figures have already been disputed and are believed to be an underestimate.

It is important to note that it is currently unlawful to deprive anyone of their liberty. Prior to April 2009 this can only be lawfully authorised by the Court of Protection

What is a deprivation of liberty?
Deprivation of liberty has no clear definition. Many people in hospitals and care homes may have their liberty restricted but not all will be deprived of their liberty. The following factors need to be considered.

• whether professionals have complete and effective control over assessment, care, treatment, contacts, movement and residence
• whether the person will be under constant supervision and control and not free to leave
• whether restraint is used including sedation
• whether the person would be prevented from leaving if they attempted to do so
• whether a request from carers for the person to be discharged into their care is likely to be agreed
• whether the person can maintain social contacts
• whether the person has choice about their life within the home or hospital

Training events
Five training events have been organised for 2008, early booking is essential. These aim to explore the difference between a restriction of liberty and a deprivation of liberty. A flyer can be downloaded from this page with details of dates and venues of training events.