Deprivation of Liberty Safeguards (DOLS)

 

The Deprivation of Liberty Safeguards (DoLS) form part of the Mental Capacity Act 2005 (MCA) and provide legal protection for people who lack the mental capacity to consent to arrangements made for their care or treatment that amount to a deprivation of their liberty. The safeguards are designed to ensure that any deprivation of liberty is lawful, necessary, proportionate, and in the person’s best interests. [gov.uk]

Although the Liberty Protection Safeguards (LPS) were introduced through the Mental Capacity (Amendment) Act 2019 as the intended replacement for DoLS, they have not yet been implemented. At present, DoLS remains the legal framework in England and Wales for authorising deprivation of liberty in care homes and hospitals. [careengland.org.uk], [gov.uk]

Key Points for GPs

  • Local authorities (the supervisory body) are responsible for arranging the statutory assessments required for a DoLS authorisation. [gov.uk]
  • There is no contractual requirement for a patient’s registered GP to act as a DoLS assessor.
  • GPs may be approached to provide relevant medical information to support an assessment process.
  • The Mental Health Assessor and Best Interests Assessor must be different individuals to ensure independence of decision-making.
  • A minimum of two appropriately qualified assessors are involved in the statutory assessment process.
  • The patient’s own GP cannot act as the Best Interests Assessor for that patient.
  • Any report or opinion provided outside NHS contractual responsibilities may be subject to a private fee in accordance with local practice policies.
  • A death occurring whilst a person is subject to a DoLS authorisation does not automatically require referral to the Coroner. However, coronial referral may still be necessary depending on the circumstances of the death, local arrangements, and Medical Examiner advice. [judiciary.uk]

What Constitutes a Deprivation of Liberty?

Following the Supreme Court judgment in Cheshire West, a deprivation of liberty is likely to exist where a person:

  • Is under continuous supervision and control; and
  • Is not free to leave; and
  • Lacks capacity to consent to the arrangements.

Where these conditions are met in a hospital or care home setting, a DoLS authorisation may be required to ensure the arrangements are lawful.

The Six Statutory DoLS Assessments

Before a standard authorisation can be granted, six assessments must be completed.

1. Age Assessment

Confirms that the person is aged 18 years or over, as DoLS only applies to adults.

2. No Refusals Assessment

Confirms that the proposed arrangements do not conflict with:

    • A valid and applicable Advance Decision to Refuse Treatment;
    • A decision made by a Court of Protection;
    • A valid Lasting Power of Attorney or Court Appointed Deputy acting within their authority.

3. Mental Capacity Assessment

Determines whether the individual lacks capacity to decide about the care and treatment arrangements that give rise to the deprivation of liberty.

4. Mental Health Assessment

Confirms that the person has a mental disorder within the meaning of the Mental Health Act 1983.

This assessment must be completed by a suitably qualified Mental Health Assessor, usually a doctor with appropriate expertise and approval.

5. Eligibility Assessment

Determines whether the individual is eligible for DoLS and whether the Mental Health Act 1983 should instead be used.

This assessment is not undertaken by the person’s GP.

6. Best Interests Assessment

Determines whether:

    • A deprivation of liberty is actually occurring;
    • The arrangements are necessary to prevent harm;
    • The arrangements are proportionate to the likelihood and seriousness of that harm;
    • Deprivation of liberty is in the person’s best interests.

The Best Interests Assessor must be independent and must not be directly involved in the person’s care planning.

The Role of General Practice

GPs are not responsible for undertaking statutory DoLS assessments as part of their NHS contractual obligations. However, they may be asked to:

  • Provide factual medical information;
  • Confirm relevant diagnoses;
  • Supply background information regarding mental capacity or cognitive impairment;
  • Contribute to wider best-interest discussions where appropriate.

Practices should ensure that any requests for reports are reviewed in accordance with local LMC guidance on non-contractual work and private fees.

Deaths of Patients Subject to DoLS

Since changes introduced by the Policing and Crime Act 2017, the fact that a patient was subject to a DoLS authorisation at the time of death does not, by itself, require a Coroner’s investigation or inquest. [judiciary.uk], [sintons.co.uk]

Referral to the Coroner may still be required where:

  • The cause of death is unknown;
  • The death is violent or unnatural;
  • There are concerns regarding the quality of care provided.

Summary

DoLS continues to provide the legal framework for authorising deprivation of liberty in hospitals and care homes for adults who lack capacity. While GPs may contribute background clinical information, they are not required to undertake the statutory assessment roles. Practices should be aware of the assessment process, the limits of GP responsibilities, and the current position regarding Coroner notification following the death of a patient subject to DoLS authorisation. [gov.uk], [careengland.org.uk]