Deprivation of Liberty Safeguards (DoLS) Application Process

Please refer to the: Deprivation of Liberty Safeguards Application Flowchart

• The right to liberty is enshrined through Article 5 of the Human Rights Act (1998); the state can only remove an individual's liberty through a lawful procedure, for example that related to the criminal justice process, Mental Health Act (1983), Children Act (1989), Education and Inspections Act (2006)

• DoLS is an amendment of the Mental Capacity Act (2005) for people who lack capacity; this is applicable to children and young people, from the age of 16 years old. The applicability of DoLS to 16 and 17 year olds change after the Cheshire West (2014) and Re-D (2015) rulings where it was deemed no longer appropriate to rely on Parental Consent or s. 20 (CA, 1989) for the purpose of accommodation to restrict the liberty of young people.

• There is no statutory definition of a Deprivation of Liberty, however the Cheshire West Supreme Court Judgement made reference to an 'acid test', consisting of two key questions:
  • Is the person subject to continuous supervision and control?
  • Is the person free to leave?

These questions are applicable to any child or young person who does not have the capacity to consent to measures which deprive them of their liberty, including if this is in the community for their own safety for example car seat restraint, cot sides on a bed, locked doors, 1-2-1 supervision

• The comparator to determine whether a child or young person may be deprived of their liberty is 'a child or young person of the same age subject to the same levels of support/supervision/restrictions. It is irrelevant that the arrangements are in place to promote the child or young person's welfare and safety

• The Court of Protection directly authorises all DoLS applications, however if a child or young person is under the age of 16 years or the individual is over the age of 16 and does not consent, then this application should be processed via the High Court under Inherent Jurisdiction

• A DoLS application is placement specific, so if for the purposes of accommodation the Child or Young Person moves to a new placement, a new application would need to be made in advance of the move.

• From April 2022 as a result of the Mental Capacity (Amendment) Bill, the Liberty Protection Safeguards (LPS) will replace the existing DoLS process for anyone over the age of 16. DoLS will be still be applicable for children and young people under the age of 16

• If you are working with a child or young person, where the 'acid test' applies, or you think that it might apply but would like some more information, please discuss this in the first instance with your direct line manager and team manager. Please see the Deprivation of Liberty and Mental Capacity Guidance.