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WHAT IS DOLS?
DoLS provides a procedure whereby the managing authority of a hospital or care home is able to lawfully justify depriving a patient or resident of their liberty, if they are detained for the purpose of being given care or treatment. The deprivation can be authorised for up to 12 months and the authorisation must be kept under review.
The purpose of DoLS is to protect people from being detained if it is not in their best interests, prevent arbitrary detention when other possible alternatives have not been fully considered and give the person subject to the deprivation or their representative the right to challenge a decision.
If a person is receiving care in a setting other than a hospital or care home the DoLS procedure does not apply. This means that if a person, for example, is being deprived of their liberty in their own home, the deprivation cannot be authorised under DoLS. In these circumstances the deprivation may instead need to be authorised by the Court of Protection.
WHEN IS THERE A DEPRIVATION OF LIBERTY?
There have been numerous cases where the ECHR and the courts of this country have considered the criteria that need to be satis ed before a particular set of circumstances will amount to a deprivation of liberty under Article 5.
As a result of these cases it has been established that there are three elements which need to be satis ed before there will be a deprivation of liberty.
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1.
Is the person objectively deprived of their liberty?
The case of Cheshire West sets out the "acid test" for deciding whether a person has been objectively deprived of their liberty: (1) Is the person subject to continuous supervision and control? AND (2) Is the person free to leave?
Unfortunately the court did not lay down a prescriptive set of criteria for establishing whether the acid test is satis ed but did set out factors which would not be relevant: