Deprivation of Liberty

To have mental capacity means to:

• Understand what a decision involves
• Remember information long enough to make the decision
• Be able to “weigh up” information to reach a decision
• Communicate the decision to others.

If a person can’t do this, you might act as their deputy, attorney, or advocate. We can help you with the application process, or act as a deputy for them ourselves.

If a person can’t make their own decisions about their welfare or medical treatment, hospitals and care homes may restrict their freedoms.

This means they’ll be continually supervised, and usually not able to leave their home without a carer, or at all.

It can also allow hospitals and care homes to give necessary medical treatment without the person’s consent. In some cases, it can mean authorisation to restrain the person.

A deprivation of liberty would be justifiable if:

• A person lacks the mental capacity to consent to the care arrangements
• The local authority or Integrated Care Board are aware of these arrangements
• A person is confined to a certain place for a long period of time, under constant supervision.

Care homes and hospitals must follow the Deprivation of Liberty Safeguards (DoLS) when they limit a person’s freedom. It must be in the person's best interests, and formally authorised by independent professionals.

Care homes and hospitals can request assessments, which are carried out by a best interests assessor and a mental health assessor (it cannot be someone who’s already associated with the person’s care).

It covers:

• Whether the person is aged 18 years or over
• Whether they have a mental disorder
• If deprivation of liberty would be in the person’s best interests
• Whether they lack the mental capacity to make decisions about their care
• Whether they should be detained under the Mental Health Act 1983 instead
• Whether a deprivation of liberty would conflict with any previous decision the person made, or with any decisions a deputy or attorney made.

If the assessors authorise a deprivation of liberty, they’ll decide how long the authorisation should last (up to a maximum of 12 months, after which the care homes or hospital have to apply for a new assessment). In emergencies, hospitals and care homes can grant themselves urgent DoLS authorisation for seven days.

The Court of Protection helps people who can’t make their own decisions due to a lack of mental capacity. If these decisions need to be made on an ongoing basis, the Court can appoint someone (a deputy) to make them.