You have been given this booklet because doctors or health and social care professionals are thinking about changing the way a family member, friend or someone you provide care for is to be looked after in a hospital or in a care home.
They may be thinking about introducing a care plan which may amount to depriving your relative or friend of their liberty in some way. The doctors or other care professionals are considering this because they believe that this sort of care plan would be in the best interests of your family member or friend, and because they believe that they do not currently have the capacity to consent to the care plan themselves.
As a family member, friend, or unpaid carer of the relevant person (this is the person who needs care), you may have an opinion about whether the proposed care plan is appropriate.
You may also want to know more about how long the professional staff consider any such deprivation of liberty will be necessary, and in what ways it will be monitored.
This is where the Deprivation of Liberty Safeguards (DoLS) come in. These safeguards have been introduced to ensure that no one is deprived of their liberty in a hospital or care home setting without good reason, and that the people who are being deprived of their liberty can receive the care that they need whilst have certain very important rights adhered to.
This booklet aims to provide you with all of the relevant information that you will need to understand what the
Deprivation of Liberty Safeguards are all about, and where to find additional information.
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In the paragraphs that follow we hope to outline:-

Your rights to have a say in your friend, or relatives care, and

What you need to know to ensure that all possible steps are being taken to protect the interests of your friend or family member while they are being cared for in a way that deprives them of some of their liberty.

Who you can make a complaint to, raise a concern with, or find out more information from about the Mental
Capacity Act.
The MCA DoLS is there to provide protection for vulnerable people whop are or are about to be accommodated in hospitals and care homes who lack the capacity to consent to the care that they need, and whose care could be seen to amount to a deprivation of their liberty.
It is likely that the majority of people who will require this protection will have had their ability to decide things for themselves limited by a severe learning disability, the effects of a debilitating disorder such as dementia or people with neurological conditions such as brain injury. These safeguards cover any person over the aged 18 or over, who is cared for in hospital or a residential care setting who lacks the capacity to consent to a treatment or care plan that has the effect of depriving them of their liberty.
Mental Capacity is the ability to make a decision. This includes the ability to make a decision that affects daily life (e.g. whether to go outside for a walk, what to wear, when to get up or go to bed) as well as more serious or significant decisions such as where to live or whether to undergo a surgical procedure.
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The Law states that our starting point is to assume that all people have capacity unless or until it is established that they do not have it. This also requires that in coming to a conclusion about a person’s capacity every effort must be made to communicate with them by all means possible to ensure that an apparent lack of understanding is not simply a communication difficulty.
A person may have varying levels of capacity depending on the nature of the decision they need to make. It is quite possible that a person may have the ability to make choices about the clothes that they wear, or the people they wish to meet, but lack capacity to decide on where they live, or whether they can go out. This is because Capacity relates to the specific decision that is to be made, and the time at which that decision must be made.
Section 1(2) of the mental capacity Act 2005 states
No matter how skilled the professional staff are caring for your friend or family member, they will not be able to read a relevant person’s mind! There are a number of criteria that are used in making an assessment of a person’s capacity to make a particular decision, and these are…

Understanding information about the decision to be made o The nature of the decision o The reason why the decision is needed o The likely effects of deciding one way or the other – or making no decision at all
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

Retaining the information o In order to make a decision a person must be able to remember the relevant information about the decision long enough for it to be considered.
Using or weighing information o Can the person use the information that they have retained in order to weigh up the pros and cons of the options available to them.
Communicating the decision
 o Can the person use any possible means to communicate their decision to those caring for them?
A final point of importance to friends and family is to remember that adults who have capacity are free to make decisions that others do not agree with, or even decisions that are not in their own best interests. Nothing in these procedures or safeguards gives us the right to overrule an unwise or unpopular decision made by someone who has the capacity to make that decision.
This can be very frustrating for those who care about a vulnerable person, but it is a fundamental right that we all can exercise as adults, and it is one that is preserved as a Human
Right, which is why a careful assessment of capacity is very important, and why, given the depth of knowledge and perhaps communication skills that family and friends can offer, you can be very supportive to your friend or relative in this process.
Before going into detail about the safeguards that surround a possible deprivation of a person’s liberty, it is essential that we give regard to the underlying principles that the law lays down in the very first section of the Act:-
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1. A person must be assumed to have Capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practical steps to help them to do so have been taken without success.
3. A person must not be treated as unable to make a decision merely because they make an unwise decision
4. All acts and decisions made on behalf of a person who is unable to make decisions for themselves must be made in the person’s best interests.
5. Before any act or decision is made, consideration must be made towards finding the least restrictive course of action.
There is no simple definition of a deprivation of liberty because it depends upon the specific circumstances that a person finds themselves in. It is helpful to see deprivation of liberty as one end of a scale, with complete freedom and independence at the other end , and restrictions on a person’s liberty somewhere around the middle.
Free to Act Restrictions on Actions Deprivation
Where a person’s position is on this scale will depend on the circumstances of a particular decision, the potential impact or importance of the decision, and the proportionality of the actions taken by others in response to the needs of the person.
Let Staff know where you are
Come and go as you please Unable to leave without escort
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There have been a number of court cases that have given us some indications of where clear deprivations of liberty have occurred. These cases give us some guidance of the factors that we can look out for such as:-

A person is actively trying to leave an establishment, or his carers are actively seeking their discharge
 Staff have total control over the person’s care and movement

Staff control who the person is allowed to see and what type of treatment the person receives

The person has no freedom to leave.
1. In order to provide a specific treatment or care plan that is in the person’s best interests
2. Where Social Care staff or Doctors are satisfied that there is no suitable alternative care plan that would avoid depriving the person’s liberty
3. The Managing Authority (that is the hospital ward or care home) must apply to the Supervisory Body (the Local Health
Board, or Local Authority) for authorisation to begin the care plan.
4. If the Managing Authority realises that they need to deprive a person of their liberty in their best interests now, and they believe they meet the criteria, they may make an urgent authorisation themselves for up to 7 days whilst the
Standard application is assessed.
5. The Supervisory Body must conduct six assessments to confirm that the deprivation of Liberty is lawful and necessary These are:-
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
Age assessment – to confirm that the person is over 18

No refusals assessment , to confirm that there is not an advanced decision on this matter already recorded, or there is someone already registered to make decisions on the person’s behalf (Lasting Power of Attorney)

Mental Capacity assessment – to consider the relevant person’s capacity to consent (or refuse) the specific care plan that is being proposed.

Mental Health assessment – to check that the relevant person has some form of mental disorder that comes within the definition given in the Mental Health Act including learning disability.

Eligibility assessment to check that the MCA/DoLS is the correct legislation to apply to the person (and not some other such as the Mental Health Act)

Best Interests assessment to analyse the care plan to see if it does amount to a deprivation of liberty, that it is o the least restrictive option available, and o that it is in the best interests of the relevant person and o it is necessary to protect the relevant person from harm, and o that the proposal is proportional to the risks of the person suffering serious harm if the care plan is not imposed.
If the answer is YES to all of the six assessments then the authorisation will be given to carry out the proposed care plan or treatment.
The supervisory body will set how long the authorisation will last, based on the proposed care plan. This should be for as short a time as possible (and for no longer than 12 months). The care plan or treatment can then be given.
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While the authorisation lasts, if at any point the person no longer needs to be deprived of their liberty or their circumstances change, then the authorisation should be reviewed and, where appropriate, end.
In some cases, a hospital or care home may think it is necessary to deprive someone of their liberty immediately – for example, if the person’s circumstances change and particular treatment is needed urgently.
In this situation the managing authority can issue itself an urgent authorisation. The managing authority must apply for a standard authorisation at the same time and the assessments must complete within seven calendar days.
There are several points in the process where, as a friend or family member, you can have a say. At some points, you should be consulted. At other points, you should be informed. This section explains more about your rights.
Friends or family members previously named by the relevant person (or someone acting on the relevant person’s behalf) should be consulted at the following points:

Before a managing authority applies for an authorisation – the managing authority should discuss the proposed care plan with any named friends or family members, to see if they agree that it is appropriate and that the deprivation of liberty would be necessary. This is essential for a standard authorisation, and where possible it should happen before an urgent authorisation is made
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 by the person carrying out the best interests assessment – the person carrying out this assessment should ask any named friends or family members whether they agree that the proposed treatment or care plan is in the relevant person’s best interests
 if anyone challenges the authorisation or care plan after it has begun – if someone (such as another friend or family member, or someone appointed to represent the relevant person) challenges the authorisation, because they think it is no longer necessary or for any other reason, named friends or family members may be asked for their views.
Every named friend or family member should be kept informed about the relevant person’s treatment. In particular, you should be informed in writing:
 when the assessments have been completed, to let you know whether the authorisation has been issued or not
 when the authorisation comes to an end
 if the managing authority requests a new authorisation after any reviews or challenges to the care plan.
Everyone who is deprived of their liberty under the MCA DOLS is entitled to a relevant person’s representative (RPR). This is normally a friend or family member, who should be consulted and informed about all matters relating to the care or treatment of the relevant person while the authorisation lasts.
The RPR has legal rights to:
 request a review of the authorisation at any time
 ask for an Independent Mental Capacity Advocate (IMCA) to be appointed, to provide extra support to the relevant person and their representative if they do not already have a professional representative.
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The RPR should be appointed as soon as possible and practicable after a standard deprivation of liberty authorisation is given.
To ensure that this is the case, the person carrying out the best interests’ assessment is asked to recommend someone to act as the RPR.
As a friend or family member, you may be asked if you would be willing to act as the RPR. An RPR may be asked to represent and support the relevant person in all matters regarding the
Deprivation of Liberty including if appropriate triggering a review, using an organizations complaints procedure on the person’s behalf or making an application to the Court of
Protection. If so, you should decide if:
 you are willing to do so
 you are able to keep in regular contact with the relevant person during the authorisation period
 you are confident that you can act in their best interests.
If your friend or family member is being deprived of their liberty, you should still be able to keep in contact with them. The hospital or care home should make sure this is possible.
If you believe that your friend or family member is being deprived of their liberty unlawfully (i.e. without the appropriate authorisation in place), you should inform the hospital or care home immediately.
In the first instance, you should ask the managing authority to apply for an authorisation if it wants to continue with the care regime, or to change the care regime immediately. Given the seriousness of deprivation of liberty, the hospital or care home must respond to you quickly – normally within 24 hours.
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If you think that an authorisation is no longer necessary, you can ask for it to be reviewed. Normally, you should do this through the relevant person’s representative or by contacting the managing authority.
The following documents may be useful to you:

Mental Capacity Act 2005 Code of Practice – a document that covers the entire Mental Capacity Act. In particular, it provides information about what mental capacity is, and how it is defined.

MCA DOLS Code of Practice – a document that explains the
MCA DOLS in more depth. In particular, it looks at what deprivation of liberty is, how the assessment process should be carried out and how authorisations should be monitored and reviewed.

Mental Capacity Act 2005 Deprivation of Liberty Safeguards:
A guide for relevant person’s representatives–this guide explains the role of the RPR in more depth. Anyone appointed as an RPR should be given a copy, but it may also be useful for you if you are considering whether to become an RPR.
For further information, visit the Welsh Assembly Government’s
Mental Capacity Act website at http://www.wales.nhs.uk/sites3/page.cfm?orgid=744&pid=36233
MCA/DoLS Service for Cardiff and the Vale of Glamorgan
Docks Office
Subway Road
Barry
CF63 4RT
Tel: 01446 704849 or 01446 704722
Fax: 01446 704856
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A short guide to some of the key words and phrases used in the
Deprivation of Liberty Safeguards is set out below; more information can be found in the Code of Practice for the safeguards.
Assessor A person who carries out an assessment under the deprivation of liberty safeguards
Care home
Court of
Protection
Deprivation of liberty
Deputy
Donee
Independent
Mental
Capacity
Advocate
(IMCA)
Lasting Power of Attorney
A care facility registered under the Care Standards Act
2000
The specialist court for all issues relating to people who lack capacity to make specific decisions
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
Someone appointed by the Court of Protection with ongoing legal authority, as prescribed by the Court, to make decisions on behalf of a person who lacks capacity to make particular decisions
Someone appointed under a Lasting Power of Attorney who has the legal right to make decisions within the scope of their authority on behalf of the person (the donor) who made the Lasting Power of Attorney
Someone who provides support and representation for a person who lacks capacity to make specific decisions, where the person has no-one else to support them. The IMCA service was established by the Mental Capacity Act 2005 and is not the same as an ordinary advocacy service
A Power of Attorney created under the Mental Capacity
Act 2005 appointing an attorney (donee), or attorneys, to make decisions about the donor’s welfare, including healthcare, and/or deal with the donor’s property and affairs
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Managing authority
Mental
Capacity Act
2005
Mental Health
Act 1983
Qualifying requirement
Legislation mainly about compulsory care and treatment of patients with mental health problems. It covers detention in hospital for treatment, supervised community treatment and guardianship
Any one of six qualifying requirements (age, mental health, mental capacity, best interests, eligibility, and no refusals) that need to be assessed and met in order for a standard deprivation of liberty authorisation to be given
The person in question (i.e. the patient in a hospital, the resident in a care home)
Relevant person
Relevant person’s representative
Restriction of liberty
A person, independent of the hospital or care home, appointed to maintain contact with the relevant person, and to represent and support the relevant person in all matters relating to the operation of the deprivation of liberty safeguards
An act imposed on a person that is not of such a degree or intensity as to amount to a deprivation of liberty
Review
Standard authorisation
The person or body with management responsibility for the hospital or care home in which a person is, or may become, deprived of their liberty
Legislation that governs decision-making for people who lack capacity to make decisions for themselves or who have capacity and want to make preparations for a time when they may lack capacity in the future. It sets out who can take decisions, in which situations, and how they should go about this.
A formal, fresh look at a relevant person’s situation when there has been, or may have been, a change of circumstances that may necessitate an amendment to, or termination of, a standard deprivation of liberty authorisation
An authorisation given under Part 4 of Schedule A1. It is an authorisation given by a supervisory body after completing the assessment process, giving the lawful authority to deprive a relevant person of their liberty in the relevant care home or hospital
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Supervisory body
Unauthorised deprivation of liberty
Urgent authorisation
A local authority or local health board that is responsible for considering a deprivation of liberty request received from a managing authority, commissioning the statutory assessments and, where all the assessments agree, authorising deprivation of liberty
A situation in which a person is deprived of their liberty in a hospital or care home without the deprivation being authorised by either a standard or urgent deprivation of liberty authorisation
An authorisation given under Part 5 of Schedule A1. It is an authorisation given by a managing authority, that provides the managing authority with lawful authority to deprive a person of their liberty in a hospital or care home while the standard deprivation of liberty authorisation process is undertaken
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