Deprivation of Liberty (“DOL”) Orders are legal mechanisms designed to protect individuals' human rights when they are deprived of their liberty. In the context of 16 and 17-year-olds, DOL Orders play a critical role in safeguarding the rights and welfare of these young people. This guide will help you understand the key aspects of DOL Orders for 16 and 17-year-olds. Understanding Deprivation of Liberty Orders A Deprivation of Liberty Order is a legal framework that restricts a person's freedom of movement. It ensures that individuals, particularly vulnerable ones, receive the necessary care and protection while maintaining their rights. The primary purpose of DOL Orders is to strike a balance between protection and personal freedom. Who Can Be Subject to a DOL? In the context of 16 and 17-year-olds, DOL Orders are typically applied when these individuals lack the capacity to make decisions about their care and are at risk of harm if they are not restricted. This could be in cases of serious mental health issues, severe learning disabilities, or conditions like autism, which may lead to behaviours posing a risk to themselves or others. Assessing the Need for a DOL Before applying for a DOL Order for a 16 or 17-year-old, a thorough assessment of their mental capacity and circumstances is conducted. The assessment should demonstrate that the person lacks the capacity to make decisions about their care or residence, and their liberty needs to be restricted for their safety. Legal Framework on Deprivation of Liberty Safeguards (DoLS) for 16 and 17-Year-Olds Deprivation of Liberty Safeguards (“DoLS”) for 16 and 17-year-olds are firmly rooted in both national and international legal frameworks, emphasizing the importance of protecting the rights of vulnerable individuals while ensuring their well-being. Here, we delve into the legal framework that underpins DoLS for this age group. 1. Human Rights Act 1998 The Human Rights Act 1998 forms a cornerstone of the legal framework for DoLS in the United Kingdom. It incorporates the European Convention on Human Rights (ECHR) into UK law. Article 5 of the ECHR, the right to liberty and security, is particularly pertinent. It ensures that no one shall be deprived of their liberty except in accordance with a procedure prescribed by law and in the interests of national security, public safety, or the economic well-being of the country. For 16 and 17-year-olds, the application of DoLS must be aligned with the principles of necessity, proportionality, and the protection of their human rights. 2. Mental Capacity Act 2005 The Mental Capacity Act 2005 is another critical piece of legislation that guides the application of DoLS for individuals, including those aged 16 and 17, who may lack the capacity to make decisions about their care and residence. This act sets out the legal framework for assessing mental capacity, determining best interests, and making decisions on behalf of those who cannot do so themselves. In the context of DoLS, this ensures that the process is carried out with transparency and in line with the individual's best interests. 3. The Children Act 1989 For 16 and 17-year-olds, The Children Act 1989 comes into play. This act outlines the legal framework for the welfare of children, emphasizing the paramount importance of their best interests. DoLS for this age group must harmonize with the principles of the Children Act, ensuring that the welfare of the young person is the foremost consideration. 4. Case Law and Legal Precedents Legal precedents and case law play a pivotal role in shaping the legal framework for DoLS. Various judgments by the Court of Protection and higher courts have set crucial standards and guidelines regarding the application of DoLS, particularly for 16 and 17-year-olds. These judgments help clarify the interpretation and implementation of the law, ensuring that the rights of individuals are upheld. 5. International Conventions In addition to domestic legislation, the legal framework for DoLS for 16 and 17-year-olds also considers international conventions, including the United Nations Convention on the Rights of the Child (CRC). The CRC outlines the fundamental rights of children and adolescents, focusing on their best interests, participation, and protection. When applying DoLS to this age group, alignment with the CRC is essential to ensure that the international community's standards for child rights are respected. In conclusion, the legal framework surrounding Deprivation of Liberty Safeguards for 16 and 17-year-olds is a complex web of legislation and international agreements. It is designed to protect the rights and welfare of vulnerable young individuals, ensuring that their liberty is only restricted when absolutely necessary and always in their best interests. Best Interests Principle One of the fundamental principles in the context of DOL Orders for 16 and 17-year-olds is the "best interests" principle. The decision to apply a DOL Order must be made in the best interests of the individual. This includes considering their wishes and feelings, as well as any potential harm they might face without the restrictions. Consultation and Advocacy It is crucial that the individual's views, wishes, and feelings are taken into account. In the case of 16 and 17-year-olds, their views and those of their parents or guardians should be considered when applying for a DOL Order. An Independent Mental Capacity Advocate (IMCA) may also be appointed to represent their interests. Review Process Deprivation of Liberty Orders are not permanent. They should be regularly reviewed to ensure they remain necessary and in the person's best interests. For 16 and 17-year-olds, this means that as they mature and their circumstances change, their DOL Order should be re-evaluated. Challenging a DOL Order If a 16 or 17-year-old or their representatives believe that a DOL Order is not in their best interests, they have the right to challenge it through the Court of Protection. The court will review the case and decide whether the DOL Order should continue, be modified, or be terminated. Safeguards DOL Orders come with a set of safeguards to protect the individual's rights. This includes the right to a representative and regular reviews, as mentioned earlier. It's important to ensure that these safeguards are adhered to, and any concerns about the application of a DOL Order should be addressed promptly. Conclusion Deprivation of Liberty Orders for 16 and 17-year-olds are a crucial legal mechanism designed to protect the rights and welfare of vulnerable young people. These orders are not to be taken lightly, and their application must always be guided by the best interests principle, legislation, consultation, and regular review. When applied correctly, DOL Orders strike a balance between safeguarding and respecting the individual's right to personal freedom, ensuring their well-being and protection. Deprivation of Liberty Safeguards can be a complex and legally intricate area, particularly when dealing with vulnerable individuals. Our specialist Community Care team, headed by James Pantling-Skeet, plays a crucial role in assisting lay clients, Deputies and Trustees in navigating the complexities of DoLS. Our Community Care team are well-versed in representing the interests of those who may lack the capacity to make decisions themselves. We provide a voice for vulnerable clients, advocating for their rights and ensuring that their views and wishes are considered in the DoLS process. Navigating through the DoLS process can be extremely challenging, you can contact our community care team if you require support. Our Court of Protection team at Boyes Turner has the specialist knowledge to make all of those decisions in the most-inclusive and person-centred way possible. For further information, please contact the Court of Protection team on 0800 124 4845 or email us.
