Government to legislate for replacement of Deprivation of Liberty Safeguards

The government has said this month that it broadly agrees with the Liberty Protection Safeguards model proposed by the Law Commission to replace the Deprivation of Liberty Safeguards.

It will now bring forward legislation to implement the model “when parliamentary time allows”.

In a written ministerial statement Health Minister Caroline Dinenage said: “This Government is committed to take action to reform mental health, and transform care for people with learning difficulties and / or autism. Taking action to reform the current DoLS regime is an important contribution towards achieving these aims and providing greater protection for some of the most vulnerable people in our society.

“We have set out in detail our provisional view of each individual proposal in our response, and we broadly agree with the Liberty Protection Safeguards model. As the Government has commissioned a review into the Mental Health Act, proposals that relate to the interface between the Mental Health Act and Mental Capacity Act will be considered as part of that review.

“We also 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.”

The Law Commission published its final report and draft Bill for the new scheme in March 2017. Describing the DoLS regime as “failing”, it said its proposals were for a new set of rules designed to ensure that people that lack the capacity to consent, such as those with dementia or learning disabilities, are protected when deprived of their liberty in a hospital or care home.

The law reform advisory body said the Liberty Protections Safeguards would mean:

• enhanced rights to advocacy and periodic checks on the care or treatment arrangements for those most in need
• greater prominence given to issues of the person’s human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised
• extending protections to all care settings such as supported living and domestic settings – “therefore removing the need for costly and impractical applications to the Court of Protection”
• widening the scope to cover 16 and 17 year olds and planned moves between settings
• cutting unnecessary duplication by taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions
• extending who is responsible for giving authorisations from councils to the NHS if in a hospital or NHS health care setting
• a simplified version of the best interests assessment which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised.

It claims that the Liberty Protections Safeguards could provide a £10m saving to the taxpayer.

Law Commissioner Nicholas Paines QC said: “The Deprivation of Liberty Safeguards are failing those they were set up to protect – some of the most vulnerable people in our society.

“Our Liberty Protections Safeguards would protect people’s basic human rights and help make sure that everyone gets the care they need.

“We’re pleased the government agrees and we stand ready to work with them to implement these reforms as soon as possible.”