Deprivation of Liberty Safeguards (DoLS)

The Deprivation of Liberty Safeguards aim to protect the rights of individuals who lack the capacity to make decisions regarding their care and treatment. DoLS applies to people aged 18 or over who are receiving any care or treatment in a hospital or care home setting. 

The key principles of DoLS are as follows:

• The care provider must ensure that the individual's liberty is restricted to the minimum necessary to achieve the purpose of the care or treatment.
• Any decision taken or action carried out under DoLS must be in the best interests of the person lacking capacity.
• Deprivation of liberty must be necessary and proportionate to the person's circumstances.
• Individuals or their representatives have the right to challenge a deprivation of liberty through the Court of Protection.

Section 21a of the Mental Capacity Act 2005 establishes the right to apply for a review of a standard authorisation granted under DoLS in the Court of Protection. This section allows the person being deprived of their liberty or their representatives to challenge the decision if they believe it is not in the individual's best interests or that the deprivation is not necessary or proportionate.

The Court of Protection is a specialist court that makes decisions about the welfare and financial affairs of individuals who lack mental capacity. It has the authority to review and determine cases related to deprivation of liberty and the use of DoLS.

The process of a Section 21a challenge typically involves the following steps:

• The person being deprived of liberty, or their representative must make an application to the Court of Protection for a review of the standard authorisation.
• The applicant must provide grounds for the challenge, which may include arguing that the deprivation is not in the individual's best interests, that alternative less restrictive options exist, or that there has been a procedural error in the DoLS assessment.
• The applicant should provide relevant evidence to support their challenge. They may also be represented by a legal professional to present their case effectively.
• The Court will hold a hearing to consider the challenge.  More often than not, direction hearings will take place to consider what evidence the court requires to assist in the determination of the challenge.  During the hearing, all parties involved will have the opportunity to present their arguments and evidence, either in writing by way of witness evidence, or orally if a contested hearing is required.
• The Court will make a judgment based on the evidence presented and the principles outlined in the Mental Capacity Act. If the Court finds in favour of the challenge, the standard authorisation may be revoked, and alternative arrangements may be put in place.  The Court also has the power to amend the Standard Authorisation and add conditions to it, as appropriate.  

The DoLS is a vital framework for protecting the rights of individuals who lack capacity and are deprived of their liberty. However, in cases where there are concerns about the necessity or proportionality of the deprivation, individuals or their representatives can seek recourse through a Section 21a challenge in the Court of Protection. This ensures that the best interests of the person involved are upheld and that any deprivation of liberty is lawful and justifiable. The Court of Protection plays a crucial role in overseeing such challenges and making decisions that balance the individual's welfare and autonomy.