Changes to Deprivation of Liberty Safeguards and what they mean for clinical practice

Sarah Goldberg is Associate Professor in older persons care at the University of Nottingham; Rowan Harwood is Professor of geriatric medicine at Nottingham University Hospital; Adam Gordon is Honorary Secretary of the British Geriatrics Society and a consultant geriatrician

Health care professionals in England and Wales, have been slightly Janus-faced about Deprivation of Liberty Safeguards (DoLS) since the roll-out in response to the Bournewood judgement in 2008.

On one hand they have been seen as an important adjunct to the 2005 Mental Capacity Act, protecting vulnerable patients from the worst vagaries of best interest assessments. On the other hand, they are considered logistically burdensome, generating both additional paperwork and workload for hard-pressed health and social care professionals.

Deprivation of liberty safeguards

In March this year, the Supreme Court handed down its judgement on two cases which will have significant impact in determining whether arrangements made for the care and/or treatment of an individual lacking capacity to consent to those arrangements amount to a deprivation of liberty.

Key points of the Supreme Court Judgement: The Court ruled that there is a deprivation of liberty in terms of Article 5 of the European Convention on Human Rights if the person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements. Whether the person objects to the arrangement or not is irrelevant, as is the ‘relative normality of the placement in the context of the person’s needs.’