Changes planned to the law on deprivation of liberty

What are Deprivation of Liberty Safeguards (DoLS)?

The Supreme Court ruled in March 2014 that a deprivation of liberty happens when an individual who lacks capacity to make decisions about their treatment and care is subject to constant supervision, control, and is not free to leave. Examples of these are when a person is forced to take medication against their will or when staff exercise control over a person’s care.

DoLS ensure that people who cannot consent to their care arrangements in a care home or hospital are protected if they become deprived of their liberty and are not cared for in their best interests.

What are the changes to the law on deprivation of liberty?

The Mental Capacity Amendment Act (Liberty Protection Safeguards) has outlined that DoLS will be replaced by a new scheme called the Liberty Protection Safeguards (LPS).

Where an individual lacks the capacity to consent to arrangements for care or treatment, and this care or treatment results in a deprivation of liberty, the LPS creates a process by which these arrangements can be authorised.

What the LPS means in practice

The DoLS only apply to hospitals and care homes, whereas the LPS can be used in other settings such as supported living and private and domestic settings. Additionally, the LPS apply to people aged 16 and over, while the DoLS can only be used for those aged 18 and over.

The LPS also provides a more targeted approach as the responsible body for providing authorisation will vary depending on each setting. Previously the local authority dealt with all DoLS. Furthermore, the LPS provides greater involvement for families as there will be an explicit duty to consult those caring for the person and those interested in the person’s welfare.

When are these changes expected to come into force?

The LPS was due to come into force in October 2020, but this was then extended to April 2022, due to the impact of Covid-19 on health and social care.

Its implementation requires various consultations, which may begin in the summer, and the passage of regulations by Parliament along with the drawing up of a code of practice. This will detail how the scheme will be implemented. Regulations can then take up to 40 days to become law.

The government announced on 16 December 2021 that they will not be able to meet the April 2022 deadline and are reluctant to provide a new implementation date. With no new deadline being announced, councils and other sector bodies will have to continue preparing without full details of how the system would work alongside their other responsibilities and the constantly changing circumstances of Covid-19.