What does “on a DoL” actually mean?

In Re EM (Deprivation of Liberty, Care Planning & Costs) [2024] EWCOP 76 (T2), HHJ Burrows addressed critical misunderstandings surrounding Deprivation of Liberty (DoL) authorisations.  

The case involved "Emma" (a pseudonym), an 18-year-old with autism, ADHD, and a history of self-harm and suicide attempts, whose restrictive care plan amounted to a deprivation of liberty.  While capacity issues and Emma's care plan were central to the case, this summary focuses on HHJ Burrows' clarification of the court's role and the meaning of being "on a DoL".

A key misconception addressed in the case is the belief that a DoL authorisation mandates the restrictions outlined in the care plan. HHJ Burrows clarifies that it is, in fact, permissive.  

DoL (or DoLs, plural) derives from Article 5 of the European Convention and refers to any deprivation of liberty.  DOLS (Deprivation of Liberty Safeguards) is a specific legal framework under Schedule A1 of the MCA for authorising deprivations of liberty in care homes or hospitals.  The Local Authority in Emma's case sought to withdraw their DoLs application, mistakenly believing they were requesting to withdraw the restrictions themselves.

HHJ Burrows explained: "To be 'on' or 'under a DoL' means to be subject to an order (or authorisation) approving and authorising a care plan which allows the carer to use restrictions that amount to a deprivation of liberty." He reflected that the emphasis "is on the care plan itself not the legal status of the restrictions that can be used" and this remains the decision of the care team based on Emma's best interests. The judge reflected that court authorisation of a care plan is often misconstrued as a mandatory order which is seen akin to a prison sentence, leading to the false assumption that individuals subject to such orders must be "actually locked in and locked up".

HHJ Burrows clarified that a DoL authorisation provides the legal framework for restrictions deemed necessary within a care plan; it does not create those restrictions. So the order gives legal backing to the care plan's restrictions but it is the job of the care team to determine when and how to implement them.  As HHJ Burrows stated:

The care plan is king

Essentially the court's role is inquisitorial, rigorously examining the proposed care plan: What is the rationale? What are the alternatives? What are the individual's wishes and feelings? Is the plan the least restrictive option? What steps are being taken to reduce the need for such restrictive measures?

The key takeaway is that the care plan and the clinical judgement of the care team remain central in determining the restrictions, its not the DoL order itself.