Deprivation of Liberty mean taking away a person's freedom to do things that they want to do and to live where they want to live.
Deprivation of Liberty Safeguards (DoLS) were introduced by the Mental Capacity Act 2005, to protect people who lack mental capacity. However, as a result of the Mental Capacity (Amendment) Act 2019, DoLs is being replaced by new Liberty Protection Safeguards (LPS), that are currently due to come into effect on 1 April 2022.
Both DoLS and LPS are designed to protect the interests of vulnerable people who may lack mental capacity and to:
- ensure that care needed is given in the least restrictive way
- prevent arbitrary decisions which deprive liberty
- provide safeguards
- provide rights of challenge against unlawful detention
- avoid unnecessary bureaucracy
The criteria for both DoLS and LPS is very similar and include the following requirements:
- a mental disorder or disability – such as dementia or a learning disability
- lack of capacity to give informed consent to the arrangements
- the 'acid test' of what constitutes deprivation (P v Cheshire West 2014),
- subject to continuous supervision and control
- not free to leave – with the focus being not on whether a person seems to be wanting to leave, but on how those who support them would react if they did want to leave (Law Society advise).
- prevention of harm to the individual
DoLS currently applies to anyone who:
- is aged 18 and over
- is accommodated in a care home or hospital registered with the Care Quality Commission
However, LPS increases this protection to anyone who:
- is aged 16 or over
is accommodated in any setting (in addition to care homes and hospitals this will include all other forms of accommodation e.g. the person’s own home and family home: supported living etc.) including multiple settings during planned transfers including transport
Other differences between DoLS and LPS:
The current Supervisory Body (Local Authority) will be replaced by the Responsible Body (commissioning body or funder - Local Authority, CCG or NHS trust)
- The current Best Interests Assessor (BIA) role will be replaced by an Approved Mental Capacity Practitioner (AMCP) and there will no longer be a Mental Health Assessor (MHA) role
- Pre-authorisation reviews will be able to be carried out by anyone from the Responsible Body who is not involved in day-to-day care of the individual.
- Authorisation renewals will be able to last for up to 3 years on the third renewal and may be paper based if there are no concerns.
Please remember that:
- DoLS currently applies
- The LPS will not be in force until April 2022 and changes may be introduced within the Code of Practice that is due to be published for consultation in Autumn 2021.