Deprivation of Liberty Safeguards aim to protect patients and staff when patients lack capacity to make decisions for themselves
The Deprivation of Liberty Safeguards are contained in the Mental Capacity Act and provide formal protection for individuals who lack capacity and are detained in a hospital or care home. Those detained under the Mental Health Act have clear legal protection but, before these safeguards were introduced, those detained outside the Mental Health Act did not. This article examines the rights of individuals without capacity, the origins of the safeguards, their application in the general ward setting and their place in protecting patients and healthcare staff.
Citation: Elton J (2013) How to apply Deprivation of Liberty Safeguards. Nursing Times; 109: 20, 12-14.
Author: Jacqueline Elton is matron, acute division, University Hospitals of Leicester Trust.
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Most nurses will be familiar with patients refusing care and treatment, or refusing to remain in hospital against the advice of health professionals. However, they may not know exactly what they, or other members of the multidisciplinary team, can do in these situations. The Deprivation of Liberty Safeguards (DoLS) offer guidance on this; the clarity this gives protects patients and the health professionals working with them. The DoLS are part of the Mental Capacity Act 2005 and apply only to patients who lack capacity.
Patients with capacity
Before considering patients who lack capacity it is important to be clear of the rights of those with capacity. This is guaranteed in English law, stated by Lord Donaldson in the case Re T  All ER 649 (General Medical Council):
“An adult patient who, like Miss T, suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered … This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.” Lord Donaldson MR 
This position has been confirmed in many court decisions since; two that clearly illustrate the absolute nature of this right are St Georges Healthcare NHS Trust v S, R v Collins, ex p S  3 WLR 936 and Re B (adult: refusal of medical treatment)  EWHC 429 (fam).
In the first of these cases, S was diagnosed with severe pre-eclampsia 36 weeks into her pregnancy and was advised she needed to be admitted to hospital for treatment. She understood the risks of declining treatment but repeatedly expressed the wish for her child to be born naturally. It was identified that she had previously been diagnosed with moderate depression and that the relationship with the baby’s father had recently ended.
S was seen by an approved social worker and two doctors; having declined their advice she was compulsorily admitted to a psychiatric ward for assessment under Section 2 of the Mental Health Act 1983. The grounds for the admission were that S was “suffering from mental disorder of a nature or degree that warrants detention… with a view to the protection of other persons”. The court identified that “other persons” could only have been the foetus. Under the Mental Health Act, S underwent a Caesarean section and discharged herself once the section was lifted. She appealed the grounds for her detention and treatment.
In a lengthy judgment the Court of Appeal considered the issues raised, and made clear the right of the pregnant woman to refuse treatment, even when this placed the life of her unborn child at risk:
“In our judgement while pregnancy increases the personal responsibilities of a woman, it does not diminish her entitlement to decide whether or not to undergo medical treatment. Although human, and protected by the law in a number of different ways… an unborn child is not a separate person from its mother. Its need for medical assistance does not prevail over her rights. She is entitled not to be forced to submit to an invasion of her body against her will, whether her own life or that of her unborn child depends on it. Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant.” [at 957; St Georges Healthcare NHS Trust v S, R v Collins, ex p S  3 WLR 936]
The ultimate right - that of a competent patient to decide on withdrawal of treatment that would lead to their death - was confirmed in the case Re B (adult: refusal of medical treatment)  WHC 429 (fam). This case concerned a patient, Ms B, who, following a bleed in her upper spinal column, was paralysed from the neck down and became dependent on artificial ventilation. Ms B had refused this treatment but was judged to lack capacity by two psychiatrists in April 2001 and her request for ventilation to be withdrawn was rejected. However, following assessment by an independent psychiatrist in August of that year, she was determined to have capacity. Ms B again requested discontinuation of ventilation; her doctors again refused, despite there being an acceptance of her competence. In her ruling, Butler-Sloss stated:
“Unless the gravity of the illness has affected the patient’s capacity, a seriously disabled patient has the same rights as the fit person to respect for personal autonomy… I am … satisfied that Ms B is competent to make all relevant decisions about her medical treatment including the decision whether to seek to withdraw from artificial ventilation. Her mental condition is commensurate with the gravity of the decision she may wish to make…” [at 94-95; Re B (adult: refusal of medical treatment)  WHC 429 (fam)]
Even if a nurse believes a patient’s decision is unwise and not in the patient’s best interests, the patient has the right to make that decision. The responsibility of clinical staff is to establish whether patients have capacity and fully understand the possible implications of their decisions, and to ensure this is documented.
Mental Capacity Act 2005
DoLS form part of the Mental Capacity Act 2005, which sets out the rights of patients who lack capacity. It is underpinned by five principles (Box 1), which must inform each and every decision a nurse or doctor makes about a patient, be it whether to have a wash or be discharged.
Box 1. Mental capacity act 2005: underpinning principles
- A person must be assumed to have capacity unless it is established that he lacks capacity
- A person is to be treated as able to make a decision unless all practicable steps to help him to do so have been taken without success
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision
- An act done, or decision made, under this act for, or on behalf of, a person who lacks capacity must be done, or made, in his best interests
- Before the act is done, or the decision is made, regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action
The Bournewood Gap
To understand why DoLS provide a safeguard it is useful to examine how they came about. What came to be known as the Bournewood Gap was identified with the case HL v UK  (English, 2004). This concerned an individual, HL, who had been living with paid carers for a number of years. HL was 48 years old, and had autism and profound learning difficulties.
While attending a day centre attached to Bournewood Hospital in July 1997, HL became distressed and was informally admitted as an inpatient. The nature of his disabilities were such that he did not make any attempt to leave the hospital but it was noted that he became distressed when his carers, who wished to take him home, visited him. This resulted in the hospital preventing the carers from visiting. The carers went to court to obtain HL’s release; initially the domestic courts rejected the request stating that, as he did not try to leave the hospital, HL was not being restrained and the informal admission was legitimate.
HL was discharged back into the care of his carers in December 1997 after five months as an informal inpatient. However, the case was taken to the European Court of Human Rights, which took the view that such detention breached HL’s rights under Article 5(4) of the Human Rights Act 1998 - the right to liberty and security. The court instructed the UK to rectify this gap in provision, whereby an individual who lacked capacity but was not detained under the Mental Health Act 1983 could be detained. This is known as the Bournewood Gap.
DoLS became part of UK law in 2007 and came into effect in 2009. Jackson (2010) highlights that the difference between restricting individuals’ freedom and depriving them of their liberty may be “a question of degree”. It is this question that can be challenging for health staff.
The DoLS Code of Practice (2008) identifies factors that may be relevant in identifying whether steps taken by the health or social care team amount to deprivation of liberty. The list is not exhaustive but the following may be relevant in general ward settings. Liberty may be deprived if:
- Staff exercise complete and effective control over the care and movement of the person for a significant period;
- Staff exercise control over assessments, treatment, contacts and residence;
- A request by the carers for the person to be discharged to their care is refused;
- The person loses autonomy because they are under continuous supervision and control.
Determination of capacity
When considering whether a person is being deprived of their liberty, health workers must first determine whether the person lacks capacity in respect of the decision being taken. Capacity determination is covered by Section 3 of the Mental Capacity Act 2005: capacity should be presumed unless there is evidence to the contrary.
If staff believe a patient lacks capacity a clear test is set out in law. This starts with the “trigger test”: is there reason to believe the person has a condition that impairs capacity, for example dementia, infection, brain injury? If the answer is “yes”, there follows a four-stage test of capacity:
- Does the individual understand the information being presented?
- Can they retain the information?
- Can they weigh up the information?
- Can they communicate a decision?
The capacity test can be undertaken by any health or social care team member who understands the decision being made. It is important to understand that capacity is decision specific and the degree of capacity should be proportionate to the decision being made - for example, while a person can make a decision about which clothes to wear, they may not have the capacity to take a decision on invasive investigation.
Assessment of capacity is not always straightforward but the test does provide clear guidance on the areas to be considered. If a health professional has extended periods of contact with the patient, the test will often come from routine contact but it is vital the formal examination is clearly documented.
How does this work on the ward?
The behaviours that may lead nurses to consider whether DoLS is appropriate include:
- Attempting to leave the ward;
- Striking out at staff providing care and treatment;
- Repeatedly stating a wish to leave the ward, even if lacking the physical ability;
- Repeated removal of medical devices such as nasogastric tubes or cannulas.
DoLS should also be considered if the above behaviours are being managed with sedating medications.
In many ways DoLS is a bureaucratic procedure but for a ward-based nurse who thinks a patient’s liberty is being restricted, it is essential. Trusts may take varying approaches to DoLS applications but, no matter what mechanism is in place, it is essential the application for both urgent and standard DoLS authorisation is made.
Urgent DoLS refers to an appropriately trained individual assessing that it is in the patient’s best interests that the deprivation begins immediately. This authorisation lasts a maximum of seven days. The standard authorisation is completed at the same time and is sent with the urgent authorisation to the local DoLS team. At this point the safeguard provided by DoLS becomes apparent - being overseen externally means the events described in the Bournewood case are avoided.
When a DoLS application is made an external best-interest assessor will visit and determine whether the restrictions placed on the patient are proportionate and in the patient’s best interests. The assessor will also seek to clarify the patient’s wishes by liaising with relatives or, if no suitable relative or significant other is available, an independent mental capacity advocate.
On completion of the assessment, the assessor will either approve the deprivations being applied for a fixed period or will determine that the restrictions are being inappropriately applied. (S)he may also approve the restrictions but apply conditions, for example that behavioural charts be maintained for a certain period.
This legislation provides safety for health staff in that, when properly applied, it prevents nurses and other health professionals from being accused of overstepping their boundaries. For example, a nurse may complete the necessary documentation, approving the use of a deprivation with the urgent application; the external assessor may then determine that this deprivation is not appropriate and not in the patient’s best interests. As the appropriate procedures and protocols have been followed, and rationale for deprivation has been documented, the nurse should not be considered to be at fault.
The need for DoLS assessment may be obvious but it can also be unclear, as illustrated by the fictional scenarios in Box 2.
Box 2. Assessing the need for dols
Brian Jones sustained a traumatic brain injury resulting in extreme agitation. This has led to him being at constant risk of falling out of bed, blocking his tracheostomy tube and pulling out his enteral feeding tube. The agitation cannot be managed with sedation so at least one or two nurses need to be with him 24 hours a day to prevent falls; nursing or medical care can only be given when six to eight nurses are present.
- As defined in the Deprivation of Liberty Safeguards Code of Conduct, the staff govern all Mr Jones’ activities and he loses autonomy as supervision is both close and constant. This response is proportionate to the risk posed and in Mr Jones’ best interests.
Moira Smith has a brain injury. She is not agitated but needs constant one-to-one care as she is trying to leave the unit and staff must physically move her away from the doors. She is fully concordant with all other aspects of care but there is a concern that she would be at risk of getting lost or sustaining injury if she leaves the ward on her own.
- It is advisable to complete a DoLS assessment. The nurses are not controlling every aspect of Ms Smith’s life but they are exercising complete and effective control over her movement for a significant period. If the external best-interest assessor deems the control to be less than a deprivation of Ms Smith’s liberty, the urgent DoLS will be cancelled but the level of care will continue with staff confident they are acting lawfully.
Joyce Green has dementia. She is refusing to have a dalteparin injection administered as a prophylaxis for deep vein thrombosis but is accepting all other elements of care.
- DoLS does not appear necessary as all other aspects of care are being accepted. If the restriction amounts to little more than holding Ms Green’s arm to allow the injection once a day, there is no significant control over her movements and activities. The prevention of the possible harm of a pulmonary embolism or a DVT means the intervention is in her best interests
Patients who have full capacity are free to make their own decisions, even if these appear to health professionals to be poor. If patients do lack capacity, health professionals should consider whether their liberty is being restricted and, if it is, make an application under DoLS. If there is any doubt, consult the person responsible for DoLS in the trust. Most importantly, ensure all decisions are fully documented.
Properly applied, DoLS safeguard staff and patients; they are therefore far more than “just another piece of paper”.
- Individuals with capacity have a right to self-determination - even if they make decisions health professionals think are poor
- Deprivation of Liberty Safeguards (DoLS)can only apply to individuals who are assessed as lacking capacity
- Capacity is decision specific - the level of capacity must be judged based on the decision being made
- Any deprivation must be proportionate
- Interventions performed under the umbrella of DoLS must be in the patient’s best interest
Deprivation of Liberty Safeguards (2008) Code of Practice to Supplement the Main Mental Capacity Act 2005 Code of Practice. London: Stationery office.
English R (2004) HL v United Kingdom (Application No 45508/99). London: One Crown Office Row. tinyurl.com/HLvUK
Jackson E (2010) Medical Law Text, Cases and Materials. Oxford: Oxford University Press