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Deprivation of Liberty

Deprivation of Liberty Safeguards

Monitoring by Care Quality Commission

the Mental Capacity Act 2005 (MCA) exists to protect and empower individuals who are unable to make some or all of their own decisions. It ensures that decisions are made in a person’s best interests – setting out who can make decisions, and when and how these decisions can be taken, on behalf of someone who does not have capacity. It also ensures that people are empowered to make their own decisions wherever possible.

Within the framework of the MCA, the Deprivation of Liberty Safeguards (DoLS) are used to protect the rights of people who are deprived of their liberty so they can receive necessary care or treatment. The DoLS apply in hospitals and care homes. A deprivation of liberty is described as:

  • when a person is under continuous or complete supervision and control, and
  • is not free to leave, and
  • the person lacks capacity to consent to these arrangements.

As set out in the Deprivation of Liberty Safeguards Code of Practice, DoLS provide a legal process to ensure that, where it is necessary to deprive a person of their liberty, it occurs in the person’s best interests.

The DoLS ensure that people who lack capacity and are deprived of their liberty have a representative voice, access to advocates and the chance to challenge whether their liberty should be denied.

Care homes and hospitals must apply to local authorities to ask if they can deprive someone of their liberty. The DoLS set out the processes that must be followed. The local authority must make sure that a number of specific assessments are carried out before granting authorisation. A hospital or care home can grant an urgent authorisation for a short time frame in exceptional cases.

The Care Quality Commission (CQC) is responsible for monitoring the use of the DoLS in hospitals and care homes. Each year, it reports on how the safeguards are being implemented. CQC inspectors look at both DoLS and the wider MCA in inspections, and their findings inform the ratings the CQC gives to providers.

The CQC is committed to working with providers to show them where they are doing well, and what they need to do where they may need to improve. It also challenges providers by taking enforcement action where it has concerns that legal requirements are not being met.

The CQC takes seriously its role to carry out enforcement where needed to protect the human rights, dignity and wellbeing of people receiving care.

Key Findings from CQC's State of Care Report 2015-16:

  • The CQC has seen examples of good practice in all sectors, including individual providers who have improved following enforcement action. Providers who applied the DoLS well had a culture of person-centred care, robust policies and documentation of DoLS procedures, and good leadership in place to provide a focus to staff understanding of DoLS and how to apply it.
  • There is variation in the effective application of DoLS both between providers and within individual providers across the different core services that the CQC inspects. This could lead to individuals not receiving care that is in their best interests.
  • Not enough providers are applying capacity assessments effectively. Many providers made assumptions that individuals lacked capacity without having carried out or documented assessments. Some providers used the 'blanket approach' to capacity assessments, which suggests that their focus may be more on managing organisational risk than delivering person-centred care.
  • Lack of staff training remains a problem. Although many staff showed good understanding of the DoLS and wider Mental Capacity Act 2005, there were many other services where training and staff understanding were not good enough.

Click here to read a summary of the report's findings on the performance of care providers in upholding DoLS. The summary was written by Jackie Goodall, our MCA and DoLS practitioner.