Dementia and DoLS | QCS

I have a care home registered to care for people with dementia. I have just had an inspection and the inspector told me that I must look very carefully at whether or not I need to apply for Deprivation of Liberty Safeguards (DoLS) authorisation for all of the people I care for. Is this right? – Ellie

Sheila Scott
Answered by Sheila Scott

Dear Ellie,

With regard to DoLS, in March 2014 the Supreme Court handed down a judgement now known as the West Cheshire judgement. This judgement changed the way we had been interpreting the DoLS regulations up to that time.

Care providers are now advised to check whether they are unlawfully depriving service users of their liberty, following this ruling.

The following is taken from A CPA briefing paper

The Cheshire West case

  • On 19 March, the Supreme Court ruled in the case of three people with learning disabilities receiving care and support in different settings. One was living with a foster carer, one was in a small care home and one was in a supported living scheme in a shared bungalow.
  • There was no dispute about whether the care regimes were in their best interests, or that they lacked the mental capacity to consent to them.
  • The question was whether the three were deprived of their liberty because they were “under continuous supervision and control” and “not free to leave”
  • The Court decided that all three were deprived of their liberty, because they were under the “continuous supervision and control” of their carers and were “not free to leave”.
  • The fact that the supervision and control was for their own benefit did not stop it being a deprivation of liberty. Nor was the fact that they seemed happy with the arrangements.
  • The Court was more concerned with whether the carers were effectively exercising control over every aspect of the person’s life. In two of the three cases, it noted that the service user “would not be allowed out without supervision, or to see anyone whom [the carers] did not wish her to see, or to do things which they did not wish her to do.”
  • Likewise, the Court did not say precisely what free to leave means, but it is clear that just being able to go out with an escort (or even unescorted) won’t be enough, if the carers are effectively controlling when and where the person can go. If the person has never, in fact, tried to leave, the question is what would happen if they did.
  • The ruling means that many more service users may be deprived of their liberty than previously thought.
  • Although this ruling was about three people with learning disabilities, it will apply to people with all kinds of needs, including people with dementia or brain injuries.
  • As well as applying to people in hospitals and care homes it may also cover people in supported living, shared lives schemes and other domiciliary settings, where the state has been involved the arrangements for their care (and possibly private arrangements where the care is state regulated).

What care providers need to do:

  • Deprivation of liberty isn’t necessarily a bad thing. Some people’s needs are so great that only continuous supervision and control is enough to keep them safe. And if they lack capacity to make decisions about their own care, providers are required to do what is in their best interests.
  • But the Court stressed that deprivation of liberty must be formally authorised, so that there is a proper independent check that it is necessary. Without authorisation, it is a breach of the service user’s human rights, and so against the law.
  • If providers find that any service users are under continuous supervision and control and not free to leave, they should first review whether that level of restriction is actually necessary. If it isn’t, a less restrictive approach should be put in place.
  • But if that level of restriction is necessary, and the user lacks capacity to consent to it, formal authorisation must be got for the deprivation of liberty.

Kind regards,


About Sheila Scott

Sheila Scott OBE from National Care Association (NCA). Care is Sheila’s life; she possesses a strong command of the issues facing the care sector informed by her long career as a nursing professional, the owner and manager of a care business and as a leader in the care sector. 3. Read more

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