Deprivation of Liberty and DoLS

It is a foundational commitment of modern liberal states that detention of citizens is only undertaken in accordance with a due process of law and is subject both to periodic review and lawful challenge. This principle governs not only criminal imprisonment but all other legally permissible deprivations of liberty imputable to the state, ranging from extradition to the control of infectious diseases. The deprivation of liberty safeguards (DoLS) are a legal framework – intended to secure a lawful basis for depriving people of their liberty – implemented in England and Wales in April 2009. The safeguards cover mentally disordered adults who are deprived of their liberty in their best interests in a registered care home or hospital for the purpose of care or treatment for which they lack capacity to consent, yet who are not detainable under the Mental Health Act (MHA).

The immediate aim of DoLS was to provide a mechanism for closing the so-called ‘Bournewood gap’ which the European Court of Human Rights (ECtHR) identified in 2004 in HL v the United Kingdom.[1] In this case, the Court found breaches of Article 5(1) and (4) of the European Convention on Human Rights (ECHR) which require that deprivations of liberty are undertaken in accordance with ‘a procedure prescribed by law’ and that detained persons can initiate a speedy process of review of the lawfulness of detention. HL was an informally admitted psychiatric patient in a hospital, but legislators believed a similar lack of procedural safeguards also covered a sizeable population – mostly of persons with dementia and learning disabilities – who were deprived of their liberty in care homes. DoLS are meant to ensure Convention compliance without the need to refer each relevant case to the Court of Protection or High Court. In addition, many have come to see them as an important statutory instrument to enforce the rights of vulnerable adults and for shining a light on dubious care practices.

Critics of DoLS have identified numerous difficulties with the regulations and their implementation. These include:

(i) overly intricate assessments required to determine whether DoLS are to be engaged, especially concerning the interface with the MHA outlined in Schedule 1A (whose Byzantine complexity presents a challenge even to many lawyers);

(ii) lack of clarity concerning the meaning of ‘deprivation of liberty’;

(iii) poor training, outdated guidance (particularly in the Code of Practice) and failures to effectively disseminate important legal developments;

(iv) administrative burden stemming from highly bureaucratic procedures for obtaining authorisations, requiring what some practitioners take to be an onerous volume of paperwork;

(v) delays, expense and difficulties in finding legal counsel when there are referrals to the Court of Protection, which threaten an effective exercise of people’s rights;

(vi) insufficient independence of managing authorities from supervisory bodies, leading to a lack of robust procedures for review;

(vii) concerns that recent case law (such as the Cheshire judgement discussed below) has narrowed the interpretation of deprivation of liberty too much, thereby impeding proper scrutiny of care practices;

(viii) lack of effective and speedy safeguards for other populations potentially deprived of their liberty, such as persons with mental disorders residing in supported living or a family home rather than a hospital or registered care home.

In light of these concerns, this report surveys the deprivation of liberty safeguards, examining their origins, the nature of the current legal regime, developments in the case law, criticisms of both legislation and current practice, and possible alternative systems.

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