Article 5 of the Human Rights Act states: "Everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty (unless) in accordance with a procedure prescribed in law.”
The Deprivation of Liberty Safeguards is a procedure prescribed in law when a person who lacks mental capacity to consent to their care or treatment is being deprived of their liberty in a care home or hospital in order to keep them safe from harm. The procedure involves having the arrangements independently assessed to ensure they are in the best interests of the individual concerned and to give those subject to a deprivation of liberty the means to challenge this.
DoLS were introduced as an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. They were specifically introduced to prevent breaches of the European Convention on Human Rights (ECHR) following the case HL v the United Kingdom (also known as R v Bournewood Community and Mental Health NHS Trust) was taken to the European Court of Human Rights (ECHR).
The case involved a regular outpatient to a psychiatric hospital with autism and learning difficulties who was deemed by the hospital staff to be unable to make decisions about the best place to receive necessary treatment. The hospital staff felt it was in his best interests to remain in hospital but his carers disagreed and wanted to care for him at home. Because the hospital staff made the ultimate decision to keep him in hospital, the ECHR ruled that this detention did not comply with the European Convention on Human Rights and amounted to him being deprived of his liberty.
To prevent further similar breaches of the ECHR, the MCA 2005 was amended to provide safeguards for people who lack capacity specifically to consent to treatment or care in either a hospital or a care home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty, and where detention under the Mental Health Act (MHA) 1983 is not appropriate for the person at that time. In order to achieve this, four key safeguards were developed:
- organisations wishing to deprive someone of their liberty must seek authorisation to do so
- where authorisations are granted they must be reviewed regularly
- the individual being deprived should be provided with a representative
- the individual being deprived has the right to challenge a granted authorisation
The safeguards relate only to people aged 18 and over. If the issue of depriving a person under the age of 18 of their liberty arises, other safeguards must be considered – such as the existing powers of the court, particularly those under section 25 of the Children Act 1989, or use of the MHA 1983.