04 October 2023 - Written by Sally Wilson

Deprivation of Liberty

Deprivation of Liberty (DoL), which comes under the Mental Health Act 2005, refers to loss of liberty, where a person’s freedom is withdrawn – and they may be placed under continuous supervision or control. Deprivation of Liberty should therefore only be imposed in very specific situations, and after a series of stringent assessments.

DoL may occur if you need to go into hospital or a care home, but you don’t have the mental capacity to make decisions for yourself. It also safeguards to protect a person who does not have the mental capacity to protect themselves and who cannot consent to their own treatment.

DoL Safeguards

DoL Safeguards (DoLS) are put in place to ensure that any treatment a person may receive is both in their best interests, and appropriate to their needs.

DoLS should only be used in the following situations:

  • In the best interests of the person – for example to prevent harm
  • When it’s become necessary, or essential to implement – for example, to prevent harm or ensure treatment
  • In a Care Home or hospital setting only
  • For a person lacking mental capacity
  • For persons aged over 18 years
  • And when ALL Deprivation of Liberty safeguards have been satisfied

Your liberty cannot be deprived until a stringent assessment procedure has been followed, ensuring all the following conditions have been met:

  • Age assessment – over 18 years of age
  • Mental Health assessment
  • Mental Capacity assessment
  • Best Interests assessment
  • Eligibility assessment
  • A ‘No Refusals’ assessment – to ensure that DoL does not conflict with any previously held views, or contrary to any decision of an Attorney acting under a Lasting Power, or Deputy, appointed by the Court of Protection.

A Deprivation of Liberty authorisation can be challenged by applying to the Court of Protection on one of the following grounds:

  • The order has not been authorised correctly
  • The order is not in the best interests of the person concerned
  • The person has mental capacity to make their own decisions

Under the Mental Capacity (Amendment) Act 2019, DoL Safeguards are due to be replaced by Liberty Protection Safeguards; however, the Government is yet to publish full guidance details.

For further information about Deprivation of Liberty, or about any other private client matter, please contact us.

Sally Wilson is a caseworker in the private client team at Barker Gotelee Solicitors in Suffolk.

For more information on our range of legal services including elderly client care, please call the team on 01473 611211 or email [email protected]