On 9th April, the Law Society published its latest guidance for health and social care professionals, Identifying a deprivation of liberty: a practical guide, on the law relating to Deprivation of Liberty Safeguards (DoLS). The guidance was commissioned by the Department of Health and aims to help professionals identify when a deprivation of liberty may be occurring in a number of settings, including care homes, hospitals and within a person’s own home. Therefore, it is relevant for all staff working within residential or domiciliary care. Read on to learn more about this new guidance and to ensure your approach to the DoLS is safe, legal and compliant.
The DoLS were introduced in April 2009, to ensure that adequate checks and balances were applied in situations where a person lacking capacity may be deprived of their liberty. In March 2014, the Supreme Court judgements in the P v Cheshire West and Chester Council and P & Q v Surrey County Council cases led to a substantial increase in the number of people considered to be deprived of their liberty and introduced the concept of the acid test to assess whether or not a person was being deprived of their liberty.
The acid test asks whether the individual lacking capacity is under continuous or complete supervision and control and is not free to leave. If both elements of the acid test are seen to be in place, according to the Supreme Court judgement, a deprivation of liberty is taking place.
Despite the introduction of the acid test, to clarify whether or not a deprivation of liberty is taking place, there has been confusion about how it is applied in differing settings and it has often been difficult to reach a consensus on whether or not a deprivation is taking place. The Law Society guidance aims to help clarify what constitutes a deprivation of liberty and to provide guidance based on case law and practical experience.
4 Steps to Utilise ‘Identifying a Deprivation of Liberty’ in Your Service
- Overview. The introductory chapter of the guidance provides a useful overview of the current approach to DoLS and is useful reading for all staff involved in identifying when a deprivation may be taking place. Circulate this chapter to all staff, in such roles, as a primer on DoLS and a link to the more detailed guidance within the main document.
- Service specific guidance. Use the section of the guidance specific to your service type to review your own practice and respond appropriately. This chapter provides specific examples of practices that are likely to be considered deprivations. These can be used as discussion points within your staff team to review areas where you may not have identified potential deprivations of liberty.
- Further resources. Review the ‘further resources’ section as a tool to provide links to additional guidance, training materials and useful documents to use within your service. Within this section, links can be found to the new Association of Directors of Adult Social Services (ADASS) forms, for application for DoLS authorisation and for notifying a Coroner of the death of a person, subject to an authorisation.
- Download. The full document is available from the Law Society website and should be used as a point of reference, alongside the DoLS Code of Practice. Ensure a copy is downloaded, printed and available to all your staff.