The Deprivation of Liberty Safeguards (DoLS) have now been in place for over 5 years. Since that time, it has been reported that thousands of people have been deprived of their liberty, and the Safeguards were deemed as inadequate last year by the House of Lords Select Committee. More recently, there has been a rise in the numbers of DoLS applications, perhaps due to the recent judgment in Cheshire West.
Whilst the Safeguards were brought in initially following a significant Court judgment (the Bournewood judgment), there has been a lack of major cases discussing the extent and parameters of the safeguards since then. This has led to marked criticism of the safeguards and a lack of clarity as to when they might apply. Indeed, a House of Lords Select Committee charged with reviewing the Mental Capacity Act 2005 last year concluded that the DoLS should be scrapped as the system was leading to thousands of people who lack capacity being deprived of their liberty unlawfully without the protections that the safeguards were supposed to provide. The report by the Committee found varying levels of applications which revealed contrasting views from different organisations as to when applications should be made.
Given the views of the House of Lords Select Committee, it is surprising that DoLS applications have in fact risen dramatically recently. Analysts have put this marked increase down to the recent cases heard in the Supreme Court (collectively known asCheshire West) when the extent of the DoLS were widened and simplified. In this case, the objective test for whether someone was deprived of their liberty was stated as: “Is the person under complete and effective control in respect of their care and movements (such as under constant supervision) and not free to leave without permission?” The Court stated that the person in question should not be compared to someone with the same disabilities as them, but to someone of the same age who has no disability. The Court also concluded that whether a person is compliant with their placement or seems to resist it, and the relative normality and purpose of their placement are not relevant factors in determining whether a deprivation of liberty has taken place.
A recent article by Health Investor magazine reported that:
“The number of Deprivation of Liberty applications made in the first quarter of 2014-15 has increased by 74% in 130 councils from the total number of applications the same councils received in the entirety of 2013-14...”
The interpretation of the recent Cheshire case law has left many organisations responsible for foster care or assisted living (which previously were not viewed as falling under the extent of the DoLS safeguards) considering that they do need to apply for DoLS assessments. There are clearly some questions still left unanswered by Cheshire, as the interaction between DoLS and the Mental Health Act 1983 still seems problematic and unclear. However, for now, organisations need to consider the application of the DoLS to those under their care, and for many this will involve seeking advice and conducting re-assessments of many of their service users using the Cheshire principles as a guide.