The Deprivation of Liberty Safeguards – essential protection or bureaucratic monster?

Abstract

The Deprivation of Liberty Safeguards ( DoLS), which came into force on the first of April 2009 as an amendment to the Mental Capacity Act 2005, are still commonly referred to as the “Bournewood safeguards,” but in fact the concern about the underlying issue long predates the final decision of the European Court of Human Rights on the Bournewood case. It goes back at least to 1983, when the new Mental Health Act brought in much greater protection for patients who were formally detained in hospital, and in particular for those who lacked the capacity to consent to treatment and who acquired additional safeguards under Part IV of that Act. However, this in turn highlighted the total absence of protection for those patients without capacity who were “ de facto detained” under the common law.