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Appendix Four: Mental Capacity Act and Deprivation of Liberty Safeguards

There may be situations in which a person who lacks capacity may require a restriction on their liberty for care and treatment.

Schedule A1 to the Mental Capacity Act, known as the Deprivation of Liberty Safeguards (DoLS) provides a legal framework to protect individuals who, for their own safety and in their best interests need to be accommodated under care and treatment regimes that may have the effect of depriving them of their liberty, but who lack the capacity to consent.

The deprivation of a person’s liberty should only happen if it is absolutely necessary, and in the best interests of the person concerned. The DoLS ensure that any decision to deprive a person of their liberty is made following defined processes and in consultation with specific authorities.

If a person who lacks capacity requires a DoLS authorisation this will be authorised by the Supervisory Body (relevant local authority). The DoLS applies only to individuals receiving care or treatment in:

  • Hospital;
  • Care Home.

If a person is living in their own home, a supported living placement or Shared Lives Scheme or equivalent, their deprivation of liberty can only be authorised by the Court of Protection.

Knowing when a Person is Deprived of their Liberty

The Supreme Court established the ‘Acid Test’, for when a person is deprived of their liberty for purposes of Article 5 of the European Convention on Human Rights:

“The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.

Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16

Therefore, if it is believed that an individual lacks capacity and meets the above criteria, the local authority of which the individual is ordinary resident should be notified.

In the event that a person experiences harm as a result of the appropriate DoLS authorisation process not being sought, consideration should be given to the need for implementing the safeguarding adults procedure. Local guidance may apply.

For further information and how to request a DoLS authorisation refer to the Deprivation of Liberty Code of Practice and contact the local authority that the person is ordinary resident of for guidance and support.

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