Deprivation of liberty safeguards
Sometimes it's in a person's best interests to have treatment in hospital, a hospice or a care home, even if they can't consent to it. When someone's personal freedom is restricted, this is called deprivation of liberty. Here, we talk about how someone's personal freedom may be restricted when they're ill. And the safeguards in place to protect their rights.
On this page:
What is deprivation of liberty?
Someone is deprived of their liberty if they're:
- unable to consent to their care or treatment
- not free to leave where they're staying
- supervised all the time.
There are laws which say that someone may be deprived of their liberty if they lack mental capacity, and it's assessed as being in their best interests. Mental capacity is your ability to make decisions.
Deprivation of liberty is a legal term. It's different from people making day-to-day choices on someone else's behalf. For example, a person living with a terminal illness may depend on other people. They may need someone else to do things like choose their clothes or what to have for dinner. This isn't deprivation of liberty in the legal sense.
Read more about mental capacity.
Why someone might be deprived of liberty
A person may have a condition such as dementia or a stroke that affects their mental capacity. This means they may not be able to make decisions about their care or treatment. It may be in someone's best interests to stay in hospital, a hospice or care home to receive care. Someone might not be allowed to leave because they could come to harm if they stopped receiving the care they need. In this way, they're being deprived of their liberty.
The person, their friends and their family don't have to object to the decision for it to be deprivation of liberty. Even if friends and family are happy with a decision about the person's care or treatment, it's still deprivation of liberty.
Protection for people deprived of liberty
The team responsible for the person's care must put safeguards in place when someone's freedom is restricted.
England, Northern Ireland and Wales have a process called deprivation of liberty safeguards (DoLS). These are rules to make sure you remain safe, even if you're deprived of liberty. Scotland has other safeguards.
Safeguards all have the same aims. These are to:
- prevent a vulnerable person from being mistreated
- make sure that depriving them of their liberty is necessary
- make sure that there are no other, less restrictive ways to give them the care they need
- make sure there are opportunities to check if depriving someone of liberty is still the right thing to do
- make sure the person has someone to represent them
- give the person, or their representative, the right to challenge decisions.
If someone’s deprived of liberty in England and Wales
If a care home, hospital or hospice in England and Wales needs to deprive someone of liberty, they must request a deprivation of liberty safeguard (DoLS) assessment.
In England, they request it from the local authority. In Wales, a hospital will request a DoLS from the local health board, and a care home will request it from the local authority.
The care homes, hospice or hospital should tell the person's family and friends that they are applying for a DoLS.
Two people carry out the assessment:
- the mental health assessor - a doctor who can assess the person's mental health.
- the best interests assessor - a trained healthcare professional who isn't directly involved in the person's care.
Together they assess the person's mental health and capacity and whether it's in their best interests to deprive them of liberty. The best interests assessor recommends a period of time for the deprivation of liberty order, which should be the shortest time possible.
Based on their report, the local authority (or local health board) decides whether to grant a deprivation of liberty authorisation.
The local authority or health board will aim to complete the assessment within 21 days of receiving the request. But it may take longer.
Read more about the assessment process.
Urgent deprivation of liberty safeguards (DoLS)
In an emergency, the care home or hospital staff can apply for an urgent authorisation which lasts seven days. This allows them to begin the deprivation before they've received an authorisation. If they need more time, they can extend the urgent DoLS by another seven days.
The person's representative
If a deprivation of liberty order is granted, the person must have someone to represent them. The representative's role is to liaise with the person and speak for them. They can ask for a review and make complaints on the person's behalf.
The person who has been deprived of liberty may choose their representative if they have mental capacity, or have a deputy for health and welfare. They may also have granted someone lasting Power of Attorney for health and welfare decisions.
Otherwise the best interests assessor will find someone. If there isn't a suitable family member or friend, the best interests assessor will recommend appointing an independent mental capacity advocate.
Read more about independent mental capacity advocates.
If someone’s deprived of liberty in Northern Ireland
The Mental Capacity Act (Northern Ireland) 2016 has guidelines for how to recognise a situation when someone’s being deprived of liberty.
If a hospital or care home needs to deprive someone of liberty, they will inform the local Health and Social Care Trust. A panel from the trust, which will include three people with relevant expertise, will look at the case and authorise a deprivation of liberty. They must be satisfied that the person would be at risk of serious harm if they weren’t deprived of liberty.
The person must have an independent mental capacity advocate to represent them.
Read more about independent mental capacity advocates.
If someone’s deprived of liberty in Scotland
The Adults with Incapacity (Scotland) Act 2000 protects people who lack mental capacity.
Power of Attorney
The person may have a Power of Attorney, which is someone who can make decisions for them about their health and welfare. If they have a Power of Attorney, it will be registered at the Office of Public Guardian (Scotland).
Read more about Power of Attorney.
Becoming a guardian
A family member or friend can also apply to the sheriff court to become the person's guardian for welfare. The guardian's role is to speak up for the person and be their representative in decisions about their care. If there isn't a suitable friend or family member, a social worker from the local council can become the person's guardian.
The local council must appoint a social worker to support and supervise guardians. The social worker must visit the guardian within three months and then every six months. The Mental Welfare Commission for Scotland also provides help and support to guardians.
Read more about how to apply to become a guardian.
Certificate of incapacity
Healthcare professionals can also complete an S47 certificate of incapacity if they need to provide non-emergency treatment to an adult who lacks capacity. The healthcare professional must prove that the treatment complies with the Adults with Incapacity (Scotland) Act 2000.
Deprivation of liberty during coronavirus
During coronavirus, there is a law that means the usual processes around DoLS might not be followed. This is because health and social care staff might not have time to do all the assessments and speak to the person and those close to them. This would only be done if it was absolutely necessary. For example, someone might be moved to a different place of care without asking them first. Someone could also be stopped from leaving their place of care to protect them from getting the virus.
Speak to the professionals involved in the person's care if you have any concerns. You can also contact the authority where you are.
I’m worried about someone who’s not allowed out of their care home
If a friend or family member is not allowed out of their care home or tells you they’re being given a treatment against their wishes, speak to the person in charge of their care.
In England and Wales, a hospital, hospice or care home must go through the DoLS process if they are depriving someone of liberty. You can also request this yourself by contacting the local council.
For more information about who to contact if you're worried:
- In England and Wales contact the Court of Protection.
- In Northern Ireland contact the Office of Care and Protection.
- In Scotland contact The Office of Public Guardian (Scotland).
I’m worried someone is being abused
If the person is in danger or needs medical attention call the emergency services on 999.
If you’re concerned that a friend or family member is being abused or neglected, tell the person’s GP or social worker. You can also call the person’s local council (or health and social care trust in Northern Ireland) and ask to speak to the adult safeguarding coordinator.
Making a complaint
To complain about someone's care, contact the care home, hospice or the local council. They'll have a procedure for dealing with complaints.
If you'd like to talk through your concerns, you can also call the charity Hourglass on 080 8808 8141.
Read more about making a complaint about care.
More information
For more information and advice about challenging a deprivation of liberty or making sure that safeguards are being properly applied, contact:
Age UK – What standards you should expect from NHS services
Care Quality Commission – Deprivation of Liberty Safeguards
Hourglass (previously Action on Elder Abuse) – supporting people against elder abuse
Mencap – advice and information about learning disability
Mental Health Lawyers Association - find a lawyer
Mind - Mental Capacity Act
Social Care Institute for Excellence (SCIE) - Deprivation of Liberty Safeguards
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About this information
This information is not intended to replace any advice from health or social care professionals. We suggest that you consult with a qualified professional about your individual circumstances. Read more about how our information is created and how it's used.
