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On your guard

Lifebouy iStock 000006045762XSmall 146x219Are problems emerging with how the deprivation of liberty safeguards operate? Lucy Series sets out ten signs of trouble with the regime.

Recently I've been trying to encourage various organisations to pay attention to the problems with the deprivation of liberty safeguards.

The Mental Health Alliance recently published a second review of the DoLS, confirming that there are serious issues with the safeguards and calling on councils and clinical commissioning groups to ensure that they uphold the rights of people detained under the Mental Health Act.

Drawing from their report, and my own research, here are ten reasons why organisations with an interest in human rights should be really worried about the DoLS:

  1. There is a postcode lottery in Article 5 protection and many thousands of people in hospitals and care homes are detained without safeguards.   The uptake of the safeguards has been far lower than expected and varies enormously between different areas. 
  2. The meaning of ‘deprivation of liberty’ is not well defined. The scope of the safeguards was left to be determined by case law, but the courts have delivered conflicting, complex and increasing narrow definitions of deprivation of liberty. As a result there is widespread confusion over the scope of the safeguards, and many vulnerable older and disabled people now fall outside their scope.
  3. The scheme is highly complex and riddled with loopholes. Even judges have complained that the scheme is so intricate that it is "completely inaccessible to those for whose benefit the legislation has been devised" [1].
  4. The safeguards are not available in all the social care settings where people may be detained. Local authorities have been required to seek authorisation annually for deprivation of liberty in supported living and residential schools directly from the courts. This is extremely costly and burdensome for local authorities and courts alike.
  5. The appeal rate is worryingly low. In the first year 1 in 200 authorisations resulted in an appeal. In the second year, this rose to 1 in 120. This suggests people are having trouble exercising their rights of appeal using the safeguards.
  6. The success of appeals using the safeguards is unknown, but appears to be low. In over three years, the only recorded case of a person successfully using the safeguards to be discharged from detention is Stephen Neary. This took a year – longer even than HL in Bournewood.
  7. The courts are creaking under the strain of the DoLS. Despite the fact the appeal rate is worryingly low, there are signs that the courts are struggling to cope with DoLS cases. This may be related to the extreme complexity of the safeguards, and a lack of additional funding for the High Court to hear such cases and train the judiciary.
  8. Support for detainees to exercise their appeal rights is patchy. Most detainees will require support to appeal, and many families will struggle to understand the safeguards without input from an advocate. Yet advocacy referrals are very low indeed, despite being recognised in case law as a vital element of Article 5 protection.
  9. Supervisory bodies administering the safeguards have conflicts of interest. They exercise a quasi-judicial role in authorising and reviewing detention, and are also responsible for supporting people to appeal against their detention. However, they have often arranged the care that constitutes detention themselves, and may not want to attract scrutiny or challenge of their commissioning or safeguarding decisions.
  10. The scheme is deeply unpopular amongst those who must apply it. The name ‘deprivation of liberty safeguards’ deters managing authorities from seeking authorisation where they should. The highly bureaucratic and resource-intensive application and authorisation process leads to resistance among supervisory bodies and managing authorities. There are few incentives or pressures to encourage compliance.

Lucy Series is a researcher in the University of Exeter’s School of Law, specialising in human rights law and community care. Lucy can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it.. Before becoming a legal researcher, she worked in mental health and social care settings for many years. Her blog can be read here. 

[1] Re C; C v Blackburn and Darwen Borough Council [2011] EWHC 3321 (COP)
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