The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DOLS) provide a legal framework around the deprivation of liberty.
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.
Who do MCA DOLS apply to?
The MCA DOLS apply to anyone:
- Aged 18 and over
- Who has a mental disorder
- Who lacks capacity to consent to the arrangements made for their care or treatment in either a hospital or a care home (registered under the Care Standards Act 2000)
- For whom a deprivation of liberty may be necessary in their best interests to protect them from harm
- Where detention under the Mental Health Act 1983 is not appropriate at that time
What is a deprivation of liberty?
The Supreme Court recently clarified that there is a deprivation of liberty in circumstances where a person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.
A deprivation of liberty can also occur in domestic settings where the State is responsible for imposing the arrangements. In such cases any deprivation of liberty must be authorised by the Court of Protection.
All appropriate steps should be taken to remove the risk of a deprivation of liberty by reducing restraint and restrictions on an individual where possible.
How do the MCA DOLS work?
When a hospital or care home (the managing authority) identifies that a person who lacks capacity is being, or risks being, deprived of their liberty, they must apply to the local authority (the supervisory body) for an authorisation of deprivation of liberty.
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 MPS’s 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 MPS’s 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.
The Department of Health has also published the following guides: