4. What are the ‘deprivation of liberty safeguards’?

The deprivation of liberty safeguards (DoLS) were added to the MCA in 2007 in response to a ruling from the European Court of Human Rights called the ‘Bournewood case’ (HL v UK, 2004).  The Equality and Human Rights Commission have made a short film about the case.  In essence, the European Court found that the UK needed a system of legal safeguards to protect the right to liberty for people who lacked capacity and who were deprived of their liberty in care homes or hospitals.  Details of how the DoLS work can be found in the DoLS Code of Practice, or short a summary is available on the Mind website.

People who are deprived of their liberty under the DoLS, and their representatives, have a right to apply to the Court of Protection to challenge any aspect of their detention. They are entitled to non means tested legal aid in order to do so.  When people are deprived of their liberty in settings other than care homes for adults or hospitals (for example, in supported living services), then those arranging their care must seek authorization directly from the Court of Protection.

In England, the Care Quality Commission is  responsible for monitoring the DoLS.  You can read their fourth monitoring report on their website.  The Health and Social Care Information Centre collect statistical data about the DoLS in England.  In Wales, the DoLS are monitored by the Care and Social Services Inspectorate for Wales, whose reports can be found here.

The DoLS have been subject to some criticism.  The Mental Health Alliance has published critical reports on the DoLS in 2010 and 2012.  In 2013 the House of Commons Health Committee expressed concern about the DoLS in a report and asked the Department of Health to review their implementation.  A House of Lords Select Committee on the Mental Capacity Act 2005 has also heard evidence from people with concerns about the DoLS.  Despite these concerns, the DoLS have worked to protect people’s human rights in important cases such as the case of Neary v Hillingdon, Ms Manuela Sykes and others.