The Deprivation of Liberty Safeguards
(DOLS)
The Deprivation of Liberty Safeguards (DOLS) are
part of the Mental Capacity Act 2005 (MCA). They aim
to make sure that people in care homes and hospitals
are looked after in a way that does not
inappropriately restrict their freedom. The safeguards
should ensure that a care home or hospital only
deprives someone of their liberty in a safe and
correct way, and that this is only done when it is in
the best interests of the person and there is no other
way to look after them.
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There have been major changes to the DOLS
regime following the Supreme Court judgment
in P v Cheshire West and Chester Council.
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Prior to the judgment a service user in
residential/nursing care, mental health
hospital inpatient or in acute hospital,
who lacked mental capacity, would only
have a DOLS put in place if there was
evidence of an objection or were
actively trying to leave their care home
or hospital or needed to be restrained.
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However, this position has been turned on its
head. The Justices argued that the ‘relative
normality test’ was wrong and instead argued
that human rights were universal. Therefore,
the position now is that if a service user who
lacks capacity to consent to their care and
treatment and is ‘under continuous supervision
and control’ and is ‘not free to leave the care
home or hospital’, then they will be deprived of
their liberty and thus a DOLS standard
authorisation must be made.
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In practice, this will have far-reaching
consequences for Bexley and of course
all local authorities. Following the above
test, the effect now is that any service
user in a care home or hospital who
lacks capacity and is not free to
leave (for whatever reason) will
require a DOLS assessment.
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Role
Best Interest Assessors
Source
Best Interest Assessors
Hourly rate (inc on
cost)
Total cost
£ 000
Ave of £40
£575,600
£170
£244,630
(ave of 10hrs per assessment)
Section 12 Doctors (required for each
Self employed
authorisation)
(per assessment)
Administrative support
LBB/Agency
£15
£64,755
POhWER
£45
£259,200
Local Advocacy Services
£25
£97,500
3 hrs per authorisation
IMCA (8 hr per person as required – likely to
be 50%)
Paid Persons Representative (26 hrs
likely to be for 10% of all authorisations)
Additional management capacity
Legal Services and associated costs –
To be evluated
Agency Locum
£ 45
£81,000
approx. 6 hrs per case
(non disputed cases - likely to be for 20% of all
authorisations)
Sub total (exc hospitals)
Hospitals Potential cost of £600 per
Based upon a current average admission assessment
of 12 people per day with cognitive
impairments = 4,380 people may be
eligible each year.
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£1,322,685
Potential demand per
year 4,380 assessments
£2,628,000
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Risks
•Representatives of those who may satisfy the new test for DOLS, who
have not been placed on a DOLS following the changes, may
contemplate how to bring human rights claims for declarations of
unlawful detention and damages. It is difficult to predict how this will
eventuate and who will take action but legal firms are already seeking
to engage individuals with mind to litigation where there is a breech.
This could possibly lead to courts awarding compensation to individuals
affected and local authorities being subject to public naming and
associated fines/costs.
Risk of increased CQC scrutiny of Managing Authorities and resultant
criticism or Inspection of the Supervisory Body (LBB)
Reputational risk for the London Borough of Bexley
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“Ordinary residence” is crucial in deciding which
local authority is required to meet
the needs in respect of adults with care and
support needs and carers. Whether the person
is “ordinarily resident” in the area of the local
authority is a key test in determining where
responsibilities lie between local authorities for
the funding and provision of care and support.
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In this case, Lord Scarman stated that:
‘unless … it can be shown that the statutory
framework or the legal context in which the
words are used requires a different meaning I
unhesitatingly subscribe to the view that
“ordinarily resident” refers to a man’s abode in a
particular place or country which he has
adopted voluntarily and for settled purposes as
part of the regular order of his life for the time
being, whether of short or long duration.’
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Local authorities must always have regard to
this case when determining the ordinary
residence of people who have capacity to make
their own decisions about where they wish
to live. For people who lack capacity to make
decisions about their accommodation, an
alternative approach is appropriate because a
person’s lack of mental capacity may mean
that they are not able to voluntarily adopt a
particular place.
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