Deprivation of Liberty Safeguards "DoLS"
This new IMCA role brought in by the Mental Health Act 2007, which has amended parts of the Mental Capacity Act 2005. DoLS come into force as of 1st April 2009.
DoLS is the legislative response to the Bournewood case where it was held that a man with severe learning disabilities had been deprived of his liberty because there had been no legal process to authorise his detention in hospital and there was no review.
DoLS specifically applies to Article 5(1)(e) of the European Convention on Human Rights (ECHR), which states:
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by the law...the lawful detention of persons...of unsound mind...
There is no specific definition of a deprivation of liberty (DoL).
For some people who lack capacity there are some circumstances in which depriving them of their liberty is necessary to protect them, and is in their best interests.
Deprivation of liberty can be authorised by Supervisory Bodies (primary care trusts and local authorities).
In the vast majority of cases, it should be possible to plan in advance so that a standard authorisation can be obtained before the deprivation of liberty begins. There may, however, be some exceptional cases where the need for the deprivation of liberty is so urgent that it is in the best interests of the person for it to begin while the application is being considered. In that case, the care home or hospital may give an urgent authorisation for up to seven days.
How can deprivation of liberty be identified?
In determining whether deprivation of liberty has occurred, or is likely to occur, decision-makers need to consider all the facts in a particular case. There is no simple definition that can be applied in every case. However decision-makers should always consider the following:
The five principles of the Mental Capacity Act 2005 apply to all decisions that are being made under the DoLS process.
If the person who lacks capacity has no family or friends who are able to contribute to the decision making process then the Statutory Body is required to make a referral for an Independent Mental Capacity Advocate (IMCA).
The IMCA will work alongside the assessors to ensure that the wishes, values and beliefs of the person are included in the assessments. They will also provide a report for the Supervisory Body.