Mental Capacity Act 2005 - Deprivation of Liberty Safeguards (MCA DOLS)

Advice correct as of July 2010

The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DOLS) (formerly known as the Bournewood safeguards) were introduced into the Mental Capacity Act 2005 through the Mental Health Act 2007.

MCA DOLS provides legal protection for individuals who lack capacity (for example those with severe autism or dementia) and who may be deprived of their liberty in hospitals or care homes to protect them from harm. These individuals are not covered by the Mental Health Act 1983 safeguards. MCA DOLS came into force in England and Wales on 1 April 2009. This factsheet provides a broad overview of MCA DOLS as it applies to England.

Who does MCA DOLS apply to?

The new system cannot be used to detain people in hospital for treatment of a mental disorder in situations where the Mental Health Act 1983 could instead be used

The MCA DOLS apply to anyone:

  • Aged 18 and over
  • Who suffers from a mental disorder or disability of the mind – such as dementia or a profound learning disability
  • Who lacks the capacity to give informed consent to the arrangements made for their care and/or treatment and
  • For whom deprivation of liberty (within the meaning of Article 5 of the European Convention on Human Rights) is considered after an independent assessment to be necessary in their best interests to protect them from harm.

MCA DOLS cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000, whether placed under public or private arrangements.

The new system cannot be used to detain people in hospital for treatment of a mental disorder in situations where the Mental Health Act 1983 could instead be used if they are thought to object to detention or treatment.

What is the purpose of MCA DOLS?

What is the purpose of MCA DOLS?

The safeguards are designed to protect the interests of an extremely vulnerable group of individuals and to:

  • Ensure people can be given the care they need in the least restrictive regimes
  • Prevent arbitrary decisions that deprive vulnerable people of their liberty
  • Provide them with rights of challenge against unlawful detention
  • Avoid unnecessary bureaucracy.

Why are these safeguards necessary?

MCA DOLS address the October 2004 European Court of Human Rights judgment in HL v the United Kingdom (the Bournewood judgment). The Bournewood case concerned an autistic man with severe learning disabilities who was informally admitted to Bournewood Hospital. It was held that he was unlawfully deprived of his liberty because of the absence of a legal procedure that provided safeguards against arbitrary detention and speedy access to court.

How does MCA DOLS work?

Authorisation should be obtained in advance except in urgent circumstances

When a hospital or care home (designated as “managing authorities” under the legislation) identifies that a person who lacks capacity is being, or risks being, deprived of their liberty, they must apply to the “supervisory body” for an authorisation of deprivation of liberty. The “supervisory body” for hospitals is the relevant PCT and for care homes it is the local authority.

Authorisation should be obtained in advance except in urgent circumstances. The supervisory body must obtain six assessments:

  • Age assessment
  • No refusals assessment
  • Mental capacity assessment
  • Mental health assessment
  • Eligibility assessment
  • Best interests assessment.

The assessments must usually be completed in 21 days of the request for the authorisation. “Assessors” appointed by the managing authority will carry out the assessments. “Assessors” will usually be doctors, nurses, social workers, or psychologists depending on the particular type of assessment. Detailed provisions about the selection and appointment of assessors are set out in legislation (see the MPS factsheet on Assessments under MCA DOLS for further information).

A representative – either a suitable relative or friend of the person concerned, or alternatively an Independent Mental Capacity Advocate (IMCA) – will be appointed to represent the individual’s interests. Legislation provides for the selection and appointment of representatives (see the MPS factsheet on Independent Mental Capacity Advocates for further information).

The duration of an authorisation will be determined on a case-by-case basis but may not be longer than 12 months. The managing authority can apply for a further authorisation when the authorisation expires. The authorisation can be reviewed at any time, and must be reviewed if this is requested by the individual or their representative.

If any of the assessments determine that the individual does not satisfy the criteria for an authorisation, the supervisory body must refuse the request for authorisation.

How many people are affected by MCA DOLS?

The Department of Health published the first statistics on MCA DOLS in June 2010. The figures show that the number of authorisations completed was:

  • 1,838 in quarter 4
  • 1,772 in quarter 3
  • 1,681 in quarter 2
  • 1,869 in quarter 1.

Further information

The Department of Health has also published the following guides:

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