When should Deprivation of Liberties Safeguards (DoLS) be put in place?

Posted on: August 3rd, 2016

A recent case in the Court of Protection has highlighted the importance of ensuring that there are regular reviews in cases where there is a DoLS in place.

Article 5 of the Human Rights Act states that ‘everyone has the right to liberty and security of person’.

No one should be deprived of their liberty without the Deprivation of Liberty Safeguards procedure being followed. In the case of a resident or patient who lacks capacity to consent to their care and treatment it may be necessary to apply for a Deprivation of Liberties Authorisation (DoLS) in order to keep them safe from harm.

In this particular case brought before the Court of Protection, it involved an elderly lady who suffered from dementia and lived in a care home. Following a psychiatric assessment, she was deemed to lack capacity to make decisions about her care, accommodation and treatment.

A DoLS authorisation was sought and obtained. The particular issue before the Court of Protection concerned the method by which she received her medication. Medication was administered to her by covert means.

It was accepted by all parties involved in the case that the lady was at risk of her health deteriorating if the medication was not administered and therefore the decision to administer her medication covertly was in her best interest and proportionate and necessary at the time the decision was taken.  

The lady was also at risk of self-neglect and risky behaviour, such as wandering at night time and aggressive behaviour.

The Court of Protection was asked to consider what would be best practice in terms of obtaining a DoLS authorisation.

In so doing, the Court of Protection said that the following conclusions could be drawn:

  • There was no proper consideration of the initial covert use of medication
  • In this case, the use of covert medication was not subject to proper reviews of safeguards
  • A later decision to administer one of her medications covertly was not communicated to the supervisory body so that appropriate consideration could take place
  • No review took place in respect of the original decision to administer medication covertly
  • The best interests decision that was taken did not appear to involve the family of the lady, her representative or her social worker

Court’s conclusion

The use of covert medication should only be used in exceptional circumstances and only then when it is judged to be necessary and in accordance with the law. A best interests meeting should always take place before such a decision is made, unless there are urgent circumstances which mean that it is not possible. 

The Court of Protection highlighted three points for consideration with administering medication covertly:

1) The length of the standard authorisation

Where the use of administering medication covertly is known about at the time of a best interests assessment, it would be inappropriate to seek the maximum length of time for the authorisation, i.e. 12 months.  In this case, the judge thought a 6 month period would be more appropriate with subsequent reviews taking place.

2) Change of circumstances

This will be specific to the facts of the case. In this case, a change of medication should have triggered a review of the authorisation in place.

3) Duty upon the managing authority

The original best interest decision should be clear and there must be a fully recorded care plan and review process in place.

This case highlights that the decision making process surrounding DoLS is complex and requires regular reviews and consideration of the ongoing need for a DoLS authorisation.

If you have queries arising from this article please do contact one of our specialist Court of Protection team who will be pleased to assist you further.