Mental Capacity and Deprivation of Liberty – an update on reform

Good practice guide
Good practices guides focus on providing information on a clinical topic.
Caroline Cooke
Premila Fade
Date Published:
27 May 2017
Last updated: 
03 April 2018

The Deprivation of Liberty Safeguards are a set of protections for adults who lack the mental capacity to consent to deprivation of their liberty by, for example, admission either to hospital or a care home for treatment or care.

They were introduced as part of the Mental Health Act 2007. The intention behind their introduction was to ensure that no-one is deprived of liberty without good reason, and the right of legal challenge is built into the authorisation process. The idea was to close the so called ‘Bournewood gap’ whereby adults admitted informally (i.e. not via the Mental Health Act) did not have an automatic right to appeal. The European Court of Human Rights (HL v United Kingdom) ruled that this lack of safeguards was a breach of article 5 ‘The right to Liberty’ of the Human Rights Act.

The Department of Health asked the Law Commission to review the legal framework to ensure suitable protections are in place. In 2015 the Law Commission carried out a public consultation, to which BGS responded. In our response we agreed that the current DoLS are unfit for purpose and should be replaced by a new system of protective care. A copy of our full response is available here. Following this consultation, in May 2016, the Law Commission published an interim statement in which they concluded that “legislative change is the only satisfactory solution to the problems”.

The Law Commission has been developing proposals which are set out in their report and draft bill. The report recommends replacing the law with a new scheme called the Liberty Protection Safeguards. In essence the proposals would mean:

  • enhanced rights to advocacy, and greater weight given to the person’s wishes and feelings when making decisions about deprivation of liberty
  • a responsibility to consult with those who care for the person and anyone else interested in their welfare
  • statutory authority to allow for deprivation of liberty to enable life sustaining treatment or prevent serious deterioration in the person’s condition
  • greater focus on whether a deprivation of liberty is necessary and proportionate, rather than in the person’s best interests, as it is recognised that local authorities and the NHS cannot be compelled to fund the best possible care, however the proposed arrangements must be a proportionate response to the risk of harm
  • allowing for authorisation to move with the person between care settings
  • extended protections to cover all care settings such as supported living – which would remove the need for costly applications to the Court of Protection
  • eliminating unnecessary duplication
  • extending who is responsible for giving authorisation to the NHS if the decision applies to a hospital or NHES health care setting
  • independent review of all assessments and enhanced protection where there is any disagreement about where the person should reside or receive treatment, via a second independent assessment from an approved mental capacity professional
  • removal of the duty to hold an inquest when a person dies whilst under a DoLs authorisation (already implemented on 3 April via Policing and Crime Act 2017)

The publication of the report concludes the review by the Law Commission. The next step is for Government to respond and indicate whether it accepts the recommendations. If they are accepted then the draft Bill would be published, and parliamentary time will be required for the bill to be debated, and if it is the will of Parliament, enacted. For the time being the existing system must still be followed.