Deprivation of Liberty Safeguards (DoLS)

On 19 March 2014, the Supreme Court handed down its judgement in the case of "P v Cheshire West and Chester Council and another" and "P and Q v Surrey County Council".

The judgement is important for deciding whether arrangements made for the care and/or treatment of an individual who might lack capacity to consent to those arrangements amount to a deprivation of liberty: it has widened and clarified the definition of deprivation of liberty.

A deprivation of liberty in such a situation must be authorised in accordance with one of the following legal regimes: a Deprivation of Liberty authorisation or Court of Protection order under the Mental Capacity Act Deprivation of Liberty Safeguards, or (if applicable) under the Mental Health Act 1983. The Supreme Court clarified how deprivation of liberty can be described. They said there is now a more straightforward way to work this out.

If the person is:

• Lacking the mental capacity to agree to their residence and care arrangements
• Not free to leave and
• Subject to continuous supervision and control

they will most likely be deprived of liberty.

Many people in hospitals and care homes may have their liberty restricted but not all will be deprived of their liberty.

Deprivation of liberty in other settings

A deprivation of liberty can happen in any setting. Someone could be cared for in their own home including sheltered housing and supported living, in circumstances that are the same as described above. The safeguards cannot be used to authorise this however and these cases will need to be referred to the Court of Protection.