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The Deprivation of Liberty Safeguards (DoLS) were introduced via The Mental Capacity Act 2005 (MCA).

DoLS are the checks set out in the MCA to protect the rights of individuals that are required to reside in residential or hospital settings and are unable to consent to their stay. This is classed as a deprivation of liberty. 

They apply to adults residing in England and Wales.

Following the Supreme Court’s judgement in P v Cheshire West and Chester County Council and P and Q v Surrey County Council, the test for determining whether someone is being deprived of their liberty is that the person is:

1. Not free to leave; and

2. Under continuous supervision and control

A DoLS authorisation ensures that the person is in the best setting in accordance with their needs and that the placement is:

• The least restrictive option

• In the persons’ best interests

If a DoLS authorisation request is granted, the supervisory body must, as soon as possible, appoint someone to represent the interest of the person, this role is called the Relevant Person’s Representative (RPR). 

The role of the RPR is to keep in contact with the person, and to represent and support them with everything relating to their deprivation of liberty. 

An RPR will:

• Maintain regular contact with the person.

• Assist the person to understand the implications of the authorisation.

• Request a review with the local authority and support and represent the person throughout this process. 

• Challenge decisions and raise concerns appropriately.

• Make an application to the Court of Protection on behalf of the individual to exercise their Article 5 (4) Right to Liberty in accordance with the Human Rights Act.

If a person does not have a suitable person to act at RPR for them then the supervisory body must appoint a Paid RPR to act on behalf of the person.

The Mental Capacity Act 2005 introduced the role of the Independent Mental Capacity Advocate (IMCA). IMCA are a legislative safeguard for people who lack capacity around certain decisions. 

Section 39 of the Mental Capacity Act outlines very specific IMCA roles:

Section 39A IMCAs are instructed when a standard authorisation is not in place. The reasons for which are that:

• A request has been made for a standard authorisation.

• A best interests assessor has been appointed by the supervisory body to check whether a person is being unlawfully deprived of their liberty.

The 39A IMCA's role is to represent the person throughout the assessments which will be carried out as part of the application for a standard authorisation.    

Section 39C IMCA’s are instructed to provide cover of the Relevant Persons Representative (RPR) role between appointments. The reason for requiring a 39C IMCA may be that the appointed RPR is unwell and unable to provide support to the person for an extended period of time. 

Section 39C IMCA’s provide support to both the person being deprived of their liberty and their Relevant Persons Representative (RPR):

Section 39D IMCA’s are instructed if the person deprived of their liberty is being supported by an unpaid Relevant Persons Representative (RPR) and:

• The person requests support of a 39D IMCA from the supervisory body.

• Their representative (RPR) asks the supervisory body for the support of a 39D IMCA.

• The supervisory body feels that the person or their RPR would benefit from the support of a 39D IMCA.

• Without the help of an IMCA, the person or their RPR would be unable or unlikely to request a review or make an application to the Court of Protection on behalf of the individual to exercise their Article 5 (4) Right to Liberty in accordance with the Human Rights Act.

• The person or their RPR has failed to request a review or made an application to the Court of Protection when it would have been reasonable to have done so. 

Once a person is no longer subject to a standard authorisation the above IMCA roles end.

The Deprivation of Liberty Safeguards are processes that care providers and local authorities must follow if a person is being deprived of their liberty in a hospital or care home setting (DoLS). 

Similarly, when someone is being deprived of their liberty in a domestic or community setting, and does not have capacity to consent to that deprivation and their care and support arrangements, the local authority will need to apply to the Court of Protection. A Court of Protection Deprivation of Liberty (CoPDoL) authorisation is permission to deprive someone of their liberty and within this application the local authority will identify a close friend or family member who is able to act as a Rule 1.2 Representative (formerly known as 3A Rep). Where the person does not have an appropriate friend or family member an independent advocate may be appointed to act as a Rule 1.2 Representative. 

In response to the large number of deprivations before the courts due to the Cheshire West ruling back in 2014 the courts devised a streamlined paper process termed Re X and it is this process that introduced the role of the Rule 1.2 Representative. Whereby the person is not suitable for the Re X process, namely because there is a dispute around the persons’ care arrangements or the person is objecting to their placement, then the person will require a Litigation Friend instead. 

The role of the Rule 1.2 Representative involves:

• Maintaining regular contact with the person to ensure that their views and wishes are represented.

• Considering whether the restrictions and deprivations that the person is subject to are necessary and proportionate.

• Reviewing and considering whether the person’s care is best meeting their needs and to ensure that this is being done in the least restrictive way.

• Keeping the person’s care and support package under review.

• Providing  a witness statement to the court in relation to the above.