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New Laws on Deprivation of Liberty Safeguards


What is the basis of deprivation of liberty safeguards?

Deprivation of liberty is the term used when a person is detained in a care home or hospital to receive care or treatment. The detention will be a breach of the person’s human rights unless an authorized process is used. These are known as deprivation of liberty safeguards.

The Mental Capacity Act 2005 introduced rules for authorizing the detention of people who need care or medical treatment when they don’t have mental capacity to consent to the care or medical treatment. The Act gives protections to anyone deprived of their liberty for reasons of care or treatment. The protections are known as deprivation of liberty safeguards or ‘DoLS’.

Problems with the DoLS

Families and professionals soon began to find flaws in the protection arrangements. The main criticisms were that the DoLS are too complex and bureaucratic. The so-called ‘Cheshire West case’ in 2014 (P v Cheshire West and Chester Council and Others) brought the attention of the public to many of the difficulties. The Law Commission produced a report suggesting new legislation to amend the safeguarding arrangements. The result is the Mental Capacity (Amendment) Act 2019.

What changes are being made to the Deprivation of Liberty Safeguards?

The Mental Capacity (Amendment) Act 2019 has changed the arrangments for authorising a deprivation of liberty of a person who can’t give consent.

Section 2 of the amending Act gives express authority for a person to take steps to deprive an incapacitated person of their liberty provided that certain conditions are met:

  1. the person authorizing the arrangement must have reasonable grounds for believing the individual doesn’t have the capacity to consent to the arrangement;
  2. the deprivation of liberty must be necessary either because the person needs life-sustaining treatment or to avoid a serious deterioration in their condition.

There are 3 circumstances under the Mental Capacity (Amendment) Act 2019 in which there will be authority for depriving a person of their liberty: (1) where there is authority from a court; (2) where a responsible body is determining whether to authorize arrangements under Schedule AA1; or (3) in cases of an emergency.

If a responsible body is going to authorize the arrangements, it must be satisfied that : (1) the person who is to be detained doesn’t have the capacity to consent to the arrangements; (2) the person has a mental disorder; and (3) the deprivation of liberty arrangements are necessary and proportionate.

The arrangements must be to prevent harm to the person and be proportionate in relation to the likelihood of them being harmed and the seriousness of the harm to the person.

The new safeguards

There is a new set of safeguards, sometimes referred to as Liberty Protection Safeguards. The Act amends the 2005 Mental Capacity Act by introducing a new Schedule AA1. This contains the details of the replacement arrangements. These include regular reviews of the authorisation by the responsible body e.g. a local authority or care home, and there is a right to challenge the authorization through the Court of Protection ( inserted by section 3).

Another important change made by the new legislation is that whereas DoLS only applied in hospitals and care homes, the new rules also apply in wider settings. LPS are also not restricted to places where the person is living; so authorisation could cover arrangements such as day centres or transport.

Removing LPS authorisation

The legal right to challenge a Liberty Protection Safeguards authorisation has to be made to the Court of Protection. The court can make an order that varies or terminates the authorisation. The court can also order the responsible body to alter the authorisation.


Update

The Government announced on 16th July 2020 that the implementation date for Liberty Protection Safeguards which was scheduled for 1st October 2020 would be postponed until April 2022. Read our latest update here