Deprivation of Liberty Safeguards (DoLS)

The care that a person receives in a care home or hospital will often involve both supervision and control.

Staff will check in on and watch residents or patients. They will manage activities, and control things such as meals and bedtimes. This care is usually what the person needs, but it can deprive them of their freedom if they have not consented (agreed) to it.

If a person is being supervised and controlled continuously this may count as a deprivation of liberty. This does not necessarily mean 24 hours a day. If they are being watched and controlled for lengthy periods this could still be classed as a deprivation of liberty.

If a person is not free to leave the place where they are being cared for, this may be a deprivation of their liberty.

Even if the person is not physically able to leave by themselves, the question is still the same – if they tried to leave, would they be stopped? If the answer is yes – and they are unable to consent or refuse this and are not free to leave – then they are being deprived of their liberty.

The care a person with dementia receives can only deprive them of their liberty if they are unable to consent or refuse that care.

If the person has freely chosen their situation, then they have not given up any of their freedom. A deprivation of liberty only happens when someone lacks the ability to decide for themselves about their care. The ability to decide is known as ‘mental capacity.

Giving consent (or ‘consenting’) means giving permission for something to happen. A person consents if they:

• agree by choice
• have the freedom and mental capacity to make that choice.

In England and Wales, the Mental Capacity Act 2005 sets out criteria for a person to be able to make a decision. This includes giving consent. A person must be able to do all of the following:

• Understand the information about the decision – in these cases, the options for care and living arrangements.
• Retain that information long enough to be able to make a decision.
• Weigh up the information available and understand the consequences of the decision.
• Communicate the decision by any possible means – such as talking, using sign language or using simple movements such as blinking an eye or squeezing a hand.

The person’s dementia can mean they cannot do one or more of these. This is due to ‘impairment or disturbance in the functioning of the mind or brain’. This means they would lack the capacity to make that decision at that time.

A person can have the capacity to make some decisions and not others. For some decisions, they will need to understand more complex information or weigh up more options than others. For example, a person with dementia may be able to choose between two meal options (fish or stew), but not take into account all the relevant information about different care and treatment options. An example could be not understanding why the care home front door is locked and they cannot go outside).

Importantly, a diagnosis of dementia does not mean that someone automatically lacks mental capacity. Mental capacity can also change over time. For example, a person with dementia might be able to think more clearly on some days and not others, or at certain times of the day.

Brenda lives at home with her husband. Since being diagnosed with Alzheimer’s disease, Brenda has found that she needs more care and support at home. In time, and as her dementia gets worse, she becomes unable to make her own decisions about her care and where she will receive that care.

Her husband feels that she now needs more care and support than he can offer and that she may need full-time care in a care home. He arranges for the local authority to assess her care needs, and the social worker agrees that she needs full-time care.

The next step is to arrange the move into a care home, and the social worker explains that there will be a Deprivation of Liberty Safeguards assessment. This is needed as Brenda lacks capacity to make the choice to move into a care home, and so by moving there she may be deprived of her liberty. This is because her care needs mean that she may be under continuous supervision and control by staff, and she will not be allowed to leave the care home.

Two assessors call to assess Brenda and the proposed care she will receive. As part of this process, they speak to her husband about his feelings on the proposed care. They agree that depriving Brenda of her freedom in this way is the right thing to do for her, and so this deprivation of liberty is authorised by the local authority. Brenda then moves to the care home, and her husband is appointed as her representative.