Deprivation of Liberty Safeguards: complexity, confusion and case law – a commentary

Abstract

Purpose – As a healthcare professional caring for people who lack capacity, the author has noted a wide variation in knowledge and awareness by staff of the Deprivation of Liberty Safeguards (DoLS). The purpose of this paper is to examine the DoLS and the background to their coming into being, describes their operation and qualifying requirements, and the continuing problems with their application nationwide. Design/methodology/approach – Utilising a literature search of government papers, official reports of statutory bodies, and critical studies, it examines the central criticisms of DoLS, particularly the lack of a clear statutory definition of deprivation of liberty, and reports on the wide variation in knowledge of the legislation by staff in health and social care, and uneven application of the safeguards nationwide. Findings – It cites evidence from studies showing that even professionals with high levels of expertise in the field find the legislation confusing, and presents testimony from legal experts that case law has failed to clarify the issues for professionals. Originality/value – Finally, it argues that the legislation is now too complex to successfully amend, and tentatively suggests that, pending a government review to make the process more understandable, health care professionals make ‘precautionary’ applications for DoLS. The author argues that, notwithstanding its faults, the process is a worthwhile exercise in care planning and ensuring that people's care is in their best interests and the least restrictive available.