Deprivation of Liberty
By Gail Frankland
The increasing elderly population in the UK suffering with conditions such as dementia reflects the growing need for placements in settings such as residential care homes, hospitals and supported living. By law these settings not only have to give the requisite care and treatment to the elderly and vulnerable, but they also need to ensure that a person who lacks mental capacity is cared for in such a way that does not restrict their freedom.
The Deprivation of Liberty Safeguards (‘DoLS’) form part of the Mental Capacity Act 2005 and were enacted on the 1st April 2009 to ensure that the elderly and vulnerable who are living in such settings are only deprived of their liberty if it is in their ‘best interests’.
Additionally, the DoLS provide a legal framework for the procedure that social and health care professionals must follow to obtain legal authorisation to deprive a person of their liberty for their care and treatment. This procedure ensures that the rights on individuals under Article 5 of the European Convention on Human Rights are protected.
The DoLS apply to the vulnerable aged 18 years and over who lack the mental capacity to make decisions about their care and treatment. They do not however apply to a person who is detained under the Mental Health Act 1983. A DoLS authorisation cannot be used for a person who does have the requisite mental capacity to make decisions about their care and treatment.
When a decision has been made by a social or health care professional that it is necessary to deprive a person of their liberty in order to care for them in a safe manner, they have to follow a strict process. This provides a vulnerable person with a representative and gives the person the right to challenge the deprivation of liberty through the Court of Protection and also provides a mechanism for the deprivation to be reviewed on a regular basis. A DoLS authorisation can last up to 12 months and has to be monitored carefully by the managing authority or supervisory body. The manager of a care home or NHS Trust is the managing authority that would apply for a DoLS authorisation. The supervisory body for residential care homes is the local authority and for hospitals is the local health board.
Although the deprivation of liberty safeguards seem complex, they are a very necessary umbrella of protection for the elderly and vulnerable in our society.
Gail Frankland is a solicitor in the private client team at Barker Gotelee Solicitors.
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