Adult Social Care Glossary, v 0.6

4A Restriction on deprivation of liberty

(1) This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.

(2) But that is subject to—
(a)the following provisions of this section, and
(b)section 4B.

(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.

(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).
D may deprive P of liberty if, by doing so, D is carrying out arrangements authorised under Schedule AA1 (arrangements enabling the care and treatment of persons who lack capacity).

4B Deprivation of liberty necessary for life-sustaining treatment or vital act

(1) If Conditions 1 to 4 are met, D is authorised to take steps which deprive P of liberty.

(2) Condition 1 is that the steps—
(a) are wholly or partly for the purpose of giving P life-sustaining treatment or doing any vital act, or
(b) consist wholly or partly of giving P life-sustaining treatment or doing any vital act.

(3) A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P's condition.

(4) Condition 2 is that the steps are necessary in order to give the life-sustaining treatment or do the vital act.

(5) Condition 3 is that D reasonably believes that P lacks capacity to consent to D taking the steps.

(6) Condition 4 is that—
(a) subsection (7) applies, or
(b) there is an emergency.

(7) This subsection applies if—
(a) a decision relevant to whether D is authorised to deprive P of liberty is being sought from the court, or
(b) a responsible body is carrying out functions under Schedule AA1 with a view to determining whether to authorise arrangements that give rise to a deprivation of P's liberty.

(8) In subsection (7) it does not matter—
(a) whether the decision mentioned in paragraph (a) relates to the steps mentioned in subsection (1);
(b) whether the arrangements mentioned in paragraph (b) include those steps.

(9) There is an emergency if D reasonably believes that—
(a) there is an urgent need to take the steps mentioned in subsection (1) in order to give the life-sustaining treatment or do the vital act, and
(b) it is not reasonably practicable before taking those steps—
(i) to make an application for P to be detained under Part 2 of the Mental Health Act,
(ii) to make an application within subsection (7)(a), or
(iii) to secure that action within subsection (7)(b) is taken.

The deprivation of liberty safeguards provide legal protection for those vulnerable people who are, or may become, deprived of their liberty within the meaning of Article 5 of the European Convention on Human Rights (EHCR) in a hospital or care home*, whether placed under public or private arrangements. They do not apply to people detained under the Mental Health Act 1983.

The safeguards exist to provide a proper legal process and suitable protection in those circumstances where deprivation of liberty appears to be unavoidable, in a person’s own best interests.

* Throughout this document, the term ‘care home’ means a care home registered under the Care Standards Act 2000.

Deprivation of liberty is a term used in the European Convention on Human Rights about circumstances when a person’s freedom is taken away. Its meaning in practice is being defined through case law.

The framework of safeguards under the Mental Capacity Act 2005 for people who need to be deprived of their liberty in a hospital or care home in their best interests for care or treatment and who lack the capacity to consent to the arrangements made for their care or treatment.

DoLS are a legal framework applying to individuals who lack the mental capacity to consent to the arrangements for their care. Where such care may amount to a "deprivation of liberty" the arrangements independently assessed to ensure they are in the best interests of the individual concerned (see https://digital.nhs.uk/data-and-information/publications/statistical/mental-capacity-act-2005-deprivation-of-liberty-safeguards-assessments/2020-21, https://www.gov.uk/government/publications/deprivation-of-liberty-safeguards-forms-and-guidance )

Safeguards under the Mental Capacity Act (2005) that aim to protect people in care homes and hospitals from being inappropriately deprived of their liberty.

A statutory safeguarding protection that is used if an individual is unable to make, or continue to agree to, their care arrangements and associated deprivations. The criteria for assessment is known as the Acid Test: is the individual subject to continuous supervision and control? Is the individual free to leave, whether or not they are attempting to?

A standard or urgent DoLS authorization is issued with specific time frames, conditions and an RPR (Responsible Person’s Representative) is assigned to monitor and support.

DoLS will soon be replaced by the new Liberty Protection Safeguards

Legal protection for people in hospitals or care homes who are unable to make decisions about their own care and support, property or finances. People with mental health conditions, including dementia, may not be allowed to make decisions for themselves, if this is deemed to be in their best interests. The safeguards exist to make sure that people do not lose the right to make their own decisions for the wrong reasons.

This Code of Practice helps explain how to identify when a person is, or is at risk of, being deprived of their liberty and how deprivation of liberty may be avoided. It also explains the safeguards that have been put in place to ensure that deprivation of liberty, where it does need to occur, has a lawful basis. In addition, it provides guidance on what someone should do if they suspect that a person who lacks capacity is being deprived of their liberty unlawfully. These safeguards are an important way of protecting the rights of many vulnerable people and should not be viewed negatively. Depriving someone of their liberty can be a necessary requirement in order to provide effective care or treatment. By following the criteria set out in the safeguards, and explained in this Code of Practice, the decision to deprive someone of their liberty can be made lawfully and properly.

Deprivation of liberty safeguards: resources for local authorities to support their roles as supervisory bodies for the Mental Capacity Act Deprivation of Liberty Safeguards (DoLS).

ADASS guidance to Councils in their role as the supervisory body for the Mental Capacity Act Deprivation of Liberty Safeguards.