Deprivation of Liberty reform advised

  • Following a government review, the Law Commission has concluded that the Deprivation of Liberty Safeguards (DoLS) system is ‘in crisis’
  • DoLS cases rose 14-fold following a 2014 Supreme Court ruling
  • Immediate reforms have been recommended to create a system that is simpler to administer and better protects individuals’ rights

The Law Commission – an independent body that reviews the laws in England and Wales – has recommended immediate reform to the current Deprivation of Liberty Safeguards (DoLS) system.

We look at the factors behind this review, and the Commission’s key recommendations.

What are DoLS?

When a person is in need of care and lacks the mental capacity to consent to their own care and treatment – for example, if they suffer from dementia or a severe learning disability – it may be necessary to deprive them of their liberty in order to act in their best interests.

This may simply be stopping them from leaving a hospital or care home in the interests of their safety.

However, a person’s liberty is an important right, enshrined in Article 5 of the Human Rights Act. Depriving somebody of his or her liberty is therefore illegal without proper justification.

The Deprivation of Liberty Safeguards (DoLS) are the current set of procedures that manage this process. They exist to determine whether a person can be legitimately deprived of their liberty and how that is to be managed in practice.

A system in crisis

Under the current system, care homes and hospitals must apply to their local authority in order to deprive somebody of their liberty.

In 2014, the Supreme Court issued a ruling that widened the scope of when these applications must be made.

Although achieving valuable protection for vulnerable individuals, this decision also threw the system into crisis due to an unsustainable rise in applications being made.

Following the ruling, official figures for England show a 14-fold rise in DoLS applications. This rise has led to unsustainable workloads for local authorities, a rising number of referrals not being assessed, and statutory timescales being routinely breached.

New system recommended

In its recommendations, the Law Commission concluded that the current system is no longer fit for purpose and should be immediately replaced.

It has put forward plans for a new system, which it calls the Liberty Protection Safeguards (LPS). Several other complementary reforms have also been advised, including the publication of a new Code of Practice covering all aspects of the Mental Capacity Act.

The Commission says that its proposals will ensure greater prominence is given to individual human rights, and reduce workloads for those administering it.

Key changes proposed

  • Applicable to all settings – the new changes seek to formalise this and add clarity that the law is no longer restricted to care/treatment in hospitals and care homes, but to any setting where it is to be administered, including the home or transport between facilities
  • Lower age threshold – widening the scope to cover 16 and 17-year-olds
  • Bring forward justification – formal consideration of deprivation of liberty justifications to occur before any arrangements are made, rather than afterwards
  • Individuals’ wishes – greater weight placed on a person’s wishes when making decisions
  • Responsible persons – place decisions in the hands of the local authority or hospital commissioning the care, making decisions an integral part of a person’s care. This will also prevent the need for hospitals to gain local authority approval, and make them an active partner in protecting patients’ liberties
  • Written statement – requiring professionals to make a written statement of compliance with the Mental Capacity Act when taking any deprivation of liberty action
  • Statutory justifications – introduce statutory authority to deprive liberty when urgent situations demand immediate action to prevent death or serious deterioration
  • Removing duplication – allowing previous assessments to be taken into account, enabling authorisations to apply to multiple settings and permitting authorisations to be renewed for those with long-term conditions