Deprivation of Liberty Safeguards

Deprivation of Liberty Safeguards (DoLS) were introduced into the Mental Capacity Act 2005 by the Mental Health Act 2007.

DoLS provide a framework for approving the deprivation of liberty for people who lack the mental capacity to consent to necessary treatment in a hospital or care home. The Supreme Court determined that deprivation of liberty occurs when:

• The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements. P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor [2014] UKSC 19).

DoLS ensure that people are only deprived of their liberty in a safe and correct way, and that this is only done when it is in their best interests and there is no other way to provide necessary care and treatment.

The safeguards provide a statutory framework for authorising a deprivation of liberty, including six separate assessments by designated professionals, and subsequent rights of review.

In 2014, a Supreme Court judgment significantly widened the definition of deprivation of liberty, meaning more people were subsequently considered to have their liberty deprived. There was a ten-fold increase in the number of deprivation of liberty applications following the judgment.

In March 2017, the Law Commission published a report and Draft Bill recommending an overhaul of the DoLS process. It recommended that DoLS are repealed and replaced by a new scheme called the Liberty Protection Safeguards, which would streamline the process for approving a deprivation of liberty.

The Government’s final response, published in March 2018, broadly accepted the Law Commission’s recommendations. Care Minister Caroline Dinenage confirmed that the Government would “bring forward legislation to implement the model when parliamentary time allows.”

The Mental Capacity (Amendment) Bill was introduced to the House of Lords on 3 July 2018. The Bill broadly follows the Law Commission’s recommendations, with some changes. 

This briefing paper relates to England and Wales only.