Government will legislate to replace Deprivation of Liberty Safeguards

Ministers broadly accept Liberty Protection Safeguards system proposed by Law Commission and pledge to legislate when parliamentary time allows

Photo: DHSC

The government has agreed to legislate to replace the Deprivation of Liberty Safeguards (DoLS) with a new system to authorise the confinement of people in care arrangements they lack the capacity to consent to, when parliamentary time allows.

In a parliamentary statement today, social care minister Caroline Dinenage said that the government had broadly accepted a replacement for DoLS – known as the Liberty Protection Safeguards – proposed by the Law Commission following a review of the law in this area commissioned by ministers, which reported last year.

In its formal response to the Law Commission’s proposals, the government accepted (or accepted in principle) 42 of 47 recommendations, with only one rejected – the proposed statutory codification of the law in relation to mental capacity and children – and four others deferred for consideration as part of the separate independent review of the Mental Health Act.

However, legislation to replace DoLS is not imminent. Dinenage said that ministers “want to ensure that Liberty Protection Safeguards fit with the conditions and future direction of the health and social care sector, so we will continue to work through the detail of the recommendations and engage further with stakeholders particularly on implementation. We will bring forward legislation to implement the model when parliamentary time allows”.

Why the DoLS is being scrapped

The Law Commission review was the government’s central response to two events in March 2014: the Supreme Court’s Cheshire West judgment, which effectively lowered the threshold for what constituted a deprivation of liberty in law, triggering a massive hike in DoLS cases; and a damning verdict that the DoLS were not fit for purpose delivered by a House of Lords committee set up to review the Mental Capacity Act.

The committee said the system, under which hospitals and care homes apply to local authorities or Welsh health boards to authorise deprivations, was over-bureaucratic and left many thousands of people unlawfully detained in care settings, a view echoed by the Law Commission when it published its proposals last year.

As with DoLS, the LPS is designed to fulfil the UK’s obligations (in relation to England and Wales) to have a system of safeguards for people who need to be deprived of their liberty to receive care and treatment but lack the capacity to consent, which complies with article 5 of the European Convention on Human Rights.

What the commission proposed

The commission’s proposed replacement differs from DoLS in several significant respects:

  • The Liberty Protection Safeguards (LPS) would apply to deprivations of liberty in all settings, not just care homes and hospitals, as with DoLS. This would mean that it would no longer be necessary to apply for a Court of Protection welfare order to authorise deprivations of liberty outside of care homes and hospitals.
  • Hospitals and clinical commissioning groups would be able to authorise deprivations of liberty in England, not just councils, as with DoLS.
  • The authorisation of a deprivation of liberty would turn on three assessments – a capacity assessment, a medical assessment to test ‘unsoundness of mind’ and an assessment of whether a deprivation is necessary and proportionate; DoLS was based on six, including a best interests assessment, which would be removed.
  • The current best interests assessor (BIA) role, which coordinates the DoLS process, carries out the best interests assessment and is mostly performed by social workers, would be replaced by that of an approved mental capacity professional (AMCP).
  • However, while a BIA is required in all DoLS cases, the AMCP would only be called upon to assess an LPS cases where it appeared that the person did not want to reside or receive care or treatment in the proposed care setting.
  • In cases where the person did not object, the body responsible for the placement (a local authority, hospital, CCG or health board) would need to arrange the three assessments and then have them independently reviewed by an employee not involved in the case.
  • As such the LPS would be a two-tier system of safeguards, unlike the DoLS, where there is a single system for all cases.

But with the government saying its view on the proposed replacement of DoLS was “provisional” and that it needed to consider the detail of the Law Commission’s proposals more carefully, it is possible that elements of the LPS will be changed before legislation is introduced.

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8 Responses to Government will legislate to replace Deprivation of Liberty Safeguards

  1. Maharg March 15, 2018 at 12:11 pm #

    Looking forward for this new version to be put into place, let’s hope it is less square wheeled then the existing version. And reviewing the process it already looks like they’re going to be some considerable discussions between a range of professionals to ascertain whether or whether not to progress.

  2. Claire muir March 15, 2018 at 7:39 pm #

    Detention in Scotland is arbitrary under mrmtal health act we have no safeguards

  3. Julie March 15, 2018 at 9:50 pm #

    I look forward to change but have to say it’s so important that everyone who has their freedom of movement monitored or supervised has an assessment to ensure this is the right decision for them .iI think also it’s very important a decision to deprive a person of their liberty is reviewed frequently ,without safeguards people could be deprived of their liberty unfairly and lack a voice change their situation ..basically they would be kept unlawfully in institutions without justification and fairness .

  4. Alison Stevens March 16, 2018 at 1:18 am #

    The DOLS system is an utter shambles .
    My Husband was placed on a DOLS via an Application made by the Care Home
    The Manager did not have the decently to inform me the next of kin and Lasting power of his health and welfare and Financies and Property that they had put the DOLS Application in to the L.A..
    I was called by a BIA who by a 15 minute phone call without ever meeting me made an assumption that I did not have the brains to carry out the role of Relevant Persons Representative pofroperly even though I was working full time as a Nurse and had long term health problems.
    She stated that if I did not go along with her views she would have the power to stop me visiting my husband in the hospital or care home.
    I was not putting up with that as the DOLS guidance stated that it is usually a Family member that takes on the role as the Relevant Persons Representative.
    With complaints to the L.A. they allowed me to take on the role in the end.
    But the whole situation has left me totally traumatised and the BIA and the L.A. treated me like a piece of dirt.
    Even though we deal with DOLS and adult Social Services cases at Parents Against Injustice where I am the Chairperson.
    The BIA totally disregarded any input the Family members told her.
    Also the Psychiatrist rang me and said that he was going to see my husband and assess him and gave me 15 minutes to get there .
    I told him it was to short notice for me to get there.
    After he told me that I had no right to be there even though I was a Deputy over health and welfare.
    He said in the end he would not assess my husband and would be telling the DOLS tram that I was not cooperating which would go against me.
    The DOLS team in this case totally agreed with me .on this one.
    In the end my Husband regained full mental capacity and now I am his full time carer at home.
    The way the whole system treated me was well and truly awful..

  5. Julia Smith March 16, 2018 at 3:59 am #

    This information has been very helpful
    I have a daughter with special needs and cannot speak for herself

  6. LouisT March 16, 2018 at 7:46 pm #

    does anyone have some practical tips for a newly qualified BIA?

  7. Martin March 16, 2018 at 8:43 pm #

    I find it incredibly sad that we continue ie to talk about confining people in community settings. I really don’t want to go see the process made more easy for people. It saddens me as a nurse to see practices that were previously restricted to hospital settings being applied increasingly to people who, to all intents and purposes, reside within their own communities. I think it’s time I begin looking to leave nursing as I don’t like the way current practices are going

  8. Beverley Vosper March 18, 2018 at 2:56 pm #

    Thank goodness. Lots of bureaucracy and red tape will hopefully be thrown out. My Mum is not allowed to be tilted for too long in her hydro chair because it is seen as a form of restraint and therefore depriving her of her liberty. How ridiculous as she is so content in this position!