Deprivation of Liberty Safeguards and the concept of "Deprivation of Liberty"
Deprivation of Liberty Safeguards
Deprivation of Liberty Safeguards, commonly known as "DoLS", were introduced into England and Wales in April 2009. They are an addition to the Mental Capacity Act 2005. So the whole of the Mental Capacity Act, including the Code of Practice, applies to DoLS.
At first, DoLS really only applied only to a small minority of the adult population of England and Wales. These are some of the most vulnerable people in our society because they are people who find it very difficult to make many - if any - decisions about their own lives. They are the people who need to be protected in some way - either from their own behaviour, or from the behaviour of someone else - but who do not meet the criteria for being sectioned under the Mental Health Act.
The interpretation of "deprivation of liberty" has been substantially altered by the ruling of the UK Supreme Court on 19th March 2014. This ruling meant that thousands more people are now covered by DoLS. See the items below for more information.
Summary of the Supreme Court’s ruling on Deprivation of Liberty, 19th March 2014
The Supreme Court, which is the UK’s highest court, gave a ruling on two cases on 19th March. The people involved in the cases were not linked in any way, but the issues were very similar, which is why they were heard together. Please note that all of our DoLS training takes account of these developments.
Brief summary of the circumstances
The “Cheshire West” case concerned a 39 year old man (“P”) who has learning disabilities and Cerebral Palsy. He lived in a small group home and needed prompting and help with all aspects of daily life.
The “MIG and MEG” case concerned two sisters, aged 18 and 17, who both have learning disabilities. MIG (also called “P”), the elder sister, was living with a foster mother. MEG (also called “Q”) had a milder disability and was living in an NHS facility. Both attended the same school, and both had a substantial amount of support to enable them to lead active lives. Both seemed reasonably happy with their living arrangements, and neither had tried to run away. However both MIG’s foster mother, and MEG’s NHS staff, had made it clear that they would restrain them, if they were to attempt to leave.
Supreme Court ruling
The Supreme Court ruled that all three individuals were in fact being deprived of their liberty. It was a unanimous ruling (there are 7 Judges) in the case of P (Cheshire West), and a majority one (5-2) in the cases of MIG and MEG. In particular the Supreme Court rejected the concept of “relative normality", saying that human rights are universal, so what constitutes a deprivation of liberty for one person must constitute a deprivation of liberty for another. The Supreme Court also gave a definition of what constitutes a deprivation of liberty. The phrase they have used is:
A person is deprived of their liberty if they are “under continuous supervision and control and is not free to leave”
This phrase actually comes from one of the original European Court of Human Rights rulings from the 1990s. In particular it was used in the well-known “Bournewood” case.
The significance of this ruling is that it pays no attention to whether P is objecting to what is happening. The “acid test” as it has been called, focuses on what is actually being done to P, not on P’s reaction to it. The question is whether P needs to have someone else’s permission to go out, to wear his own clothes etc, and if so that is a deprivation of P’s liberty irrespective of whether P objects or not.
It also focuses on the absolute nature of human rights. Deprivation of liberty is deprivation of liberty, whether it happens to you, me, a Supreme Court Judge, or someone with a learning disability.
Some useful links (most recent nearest the top) ...
- In October 2023 "Children and Young People Now" published an article about children and young people being deprived of their liberty.
- In August 2023 Ofsted issued new guidance on how children are being deprived of their liberty in (often) unsuitable settings
- In March 2023 the Local Government Ombudsman warned Surrey County Council that it must tackle "significant delays" in processing DoLS applications
- The ever-excellent 39 Essex barristers' chambers have produced various guides, based on real cases that have gone to the Court of Protection
- 39 Essex Barristers' Chambers have produced a guide on how the current DoLS Code of Practice is out of date compared to interpretations from the Courts (Section C of the Guide).
- Here are some statistics about DoLS relating to the financial year April 2021 - March 2022 (England only) ...
- ... and here are the equivalent statistics for Wales (2020-21)
- Please click here to download guidance relating to applications which go directly to the Court of Protection, ie for residents of Supported Living schemes, Sheltered Housing, Shared Lives etc. These are sometimes known as "Community DoLS" or "Deprivation of Liberty in Community Settings". And click here to download the COPDOL11 form (last updated December 2017) which has to be used to make the application.
- Please click here to view a couple of videos on SCIE which help to explain how an application for Deprivation of Liberty might be considered
- In July 2017 the Local Government Ombudsman produced a report into complaints it had investigated regarding the Mental Capacity Act and DoLS - click here to read it (only 22 pages!)
- Here's a summary of how Deprivation of Liberty affects children and young people up to the age of 18.
- Please click here to download the Chief Coroner's guidance from December 2014 on why it used to be necessary to notify the Coroner's office when someone dies whilst subject to a Deprivation of Liberty Authorisation (very legalistic, so you may wish simply to jump to paragraphs 64 and 65!). Please note, this requirement was abolished on 3rd April 2017.
- Please click here to see the guidance that has been issued by the Association of Directors of Adult Social Services (ADASS)
- Please click here to read the Law Society guidance on DoLS which was issued in April 2015 (very extensive, and very helpful)
- Please click here to download a further guidance letter from the Department of Health which was issued in January 2015
- Please click here to download the revised forms which were issued by the ADASS in November 2014, and which most Supervisory Bodies have now adopted (but you must check to make sure that that is the case with your own Supervisory Body)
- Please click here to see the CQC's guidance to care providers, issued 16th April 2014
- Please click here to see the Department of Health's guidance to health and social care professionals, issued 28th March 2014
- Please click here to read the full Supreme Court judgement in the case of Cheshire West and MIG and MEG (42 pages)
- Please click here to watch Lady Hale delivering the Supreme Court's judgement in the Cheshire West and MIG and MEG cases on YouTube (yes, the Supreme Court really does have a YouTube channel!)
- Please click here to download a copy of the Deprivation of Liberty Safeguards Code of Practice (English language version)
- Please click here to download a copy of the Deprivation of Liberty Safeguards Code of Practice (Welsh language version)