When a person has liberty, they have the freedom to do something. When a person does not have the freedom to act, regardless of whether or not they want to act, they have been deprived of their liberty. The Deprivation of Liberty Safeguards (DoLS) is a set of safeguards designed to protect people from being deprived of their liberty in the context of healthcare (DH [73]).

UK citizens are legally entitled to liberty and freedom, as enshrined in the Human Rights Act ([137]). However, some medical treatments deprive a person of their liberty (e.g. sedation and restraint). Some patients may consent to this, having weighed up the advantages and disadvantages of the treatment. However, when a person does not have the capacity to consent to medical treatment, a best interests decision is made, which may deprive that person of their liberty.

The DoLS (DH [73]) apply where all of the following are true:

DoLS also apply to people resident in other settings where care is funded by a statutory health body or local authority. In other settings, a deprivation of liberty can be authorized by the Court of Protection.

The test of deprivation of liberty has been revised into an ‘acid test’ by the Supreme Court as follows:

Every element of this must be satisfied i.e.

The patient might not attempt to leave. However, if they did try to leave and were unable to do so, then they would have been deprived of their liberty if the other elements were met. If a nurse is unsure whether an individual is being deprived of their liberty in a care home, hospital or community setting, they should contact their safeguarding adults lead or the local authority DoLS team for advice.

When a treatment is judged to deprive a non‐capacitous patient of their liberty, the treatment provider is expected to speak with family, friends and other professionals who know the patient to maximize the likelihood that the intervention will align with the patient's wishes, be in their best interest, be proportional to the level of risk that the hospital is trying to prevent, and be the least restrictive intervention. In the absence of people who know the patient, the hospital can arrange for an Independent Mental Capacity Advocate (IMCA).

When a person has consented to a care plan or treatment prior to losing mental capacity, and the care being delivered is that which the patient consented to, then this may be considered an advance plan. This is applicable to end‐of‐life care. However, when the care given deviates from the care plan, then a DoLS application must be made.

The DoLS are an amendment to the Mental Capacity Act ([176]) and their aim is to protect patients lacking mental capacity from being deprived of their liberty. In 2018 the UK government published a Mental Capacity (Amendment) Bill, which is yet to be ratified in Parliament; if this becomes law, then the processes outlined in this section will be subject to change. The bill proposes a new scheme called the Liberty Protection Safeguards, which will be applicable to people over 16 years of age staying or living in hospital, a care home, supported living, shared living or private housing. It proposes a simplified best interests decision process with greater emphasis on the patient's wishes and increased checks that the deprivation of liberty is still required.

There are times when a person has not, or is unable to, provide consent to treatment and there is no rush for treatment provision – for example, when there is an elective surgical procedure. If the treatment is assessed to deprive the person of their liberty then a DoLS standard application can be made to the local authority where the person usually resides up to 28 days in advance of treatment (Figure 5.23).

However, in medical settings, there are times when there is an urgent need to provide treatment to a person who does not have the capacity to consent to that treatment and it will deprive them of their liberty. In these situations, the hospital submits both an urgent DoLS application and a standard DoLS application to the local authority where the person is usually resident. Urgent applications are authorized by the treatment provider and so treatment can begin before the local authority responds to make an assessment.

The joint social services and Department of Health seven‐page DoLS form requires the following information about the patient:

When a hospital patient lacks capacity and is deprived of their liberty, the person concerned may, knowingly or unknowingly, attempt to leave the environment in which they have been confined. Sometimes this happens in a state of confusion or anxiety about being in an unfamiliar environment. The nurse's role is to assess and de‐escalate the situation. Any intervention to restrain the patient must be proportionate to the risk posed to the patient. For example, a person quietly attempting to leave their room to access a corridor may need a nurse to speak to them or distract them and to guide them back to their room. Any consideration to use medication as a form of restraint should be a last resort with clear considerations of the consequences and a clear justification. All organizations will have their own policies and procedures and it is important that nurses adhere to these and seek guidance from managers and the safeguarding team.

Sometimes deprivation of liberty is required to provide care or treatment and protect people from harm. Efforts should be made to prevent deprivations of liberty by making provision to avoid placing restrictions. If a deprivation of liberty cannot be avoided, it should be for no longer than is necessary.

If a nurse is working with someone whom they think has been deprived of their liberty and the appropriate safeguards have not been employed, the nurse should contact their safeguarding adults lead or the local authority DoLS team for advice.