The Mental Capacity Act (MCA) gained Royal assent in 2005 and has been fully in force since 2007. Applying to England and Wales, this piece of legislation protects and empowers people who are unable, or may become unable, to make some or all decisions about their care or treatment. In 2009, amendments were made to the MCA to include the Deprivation of Liberty Safeguards (or DoLS), but what are they for?
People who lack the mental capacity to consent to essential care or treatment may need to be placed in a care home or hospital to receive the care or treatment they need, however, a lack of mental capacity must be established before this can happen. This may be if it is felt the risk is too high if you stay where you are and all other alternatives have been explored to assist you to stay there. If this is not possible, the DoLS protect the rights of these individuals when they are detained in a care home or hospital.
The DoLS came into force in England and Wales in April 2009 under amendments to the MCA. This was because people lacking the mental capacity to express their wishes could be detained in a care home or hospital for their own health and safety, however, this could lead to a breach of their human rights – such as what happened in the 1997 ‘Bournewood case’. In 2005, the European Court of Human Rights (ECHR) decided that, based on the ‘Bournewood case’, the common law doctrine of necessity did not have sufficient safeguards in place to protect people who lacked the mental capacity to consent to care or treatment and who needed limits put on their liberty to keep them safe from harm.
The MCA primarily applies to people aged 16 and over, however, the DoLS only apply to people over the age of 18.
Apart from age, there are five other criteria that need to be assessed before DoLS can be authorised, such as:
Assessments must be completed within 21 days or before urgent authorisation expires. If a DoLS authorisation is granted, it must state how long it lasts – this can be up to a maximum of 12 months and any conditions must be attached. After the authorised period is over, a new assessment procedure must be repeated to apply for a new DoLS authorisation.
For an overview of the MCA and a more in-depth look at the DoLS amendment, Virtual College offer a Deprivation of Liberty Safeguards (DoLS) course.