Law Society issues updated guidance on identifying deprivations of liberty

The Law Society of England and Wales has updated its guidance on the Deprivation of Liberty Safeguards (DoLS) following “important developments” in the law.

The guidance is intended to help solicitors and people working in health and social care to identify when a deprivation of liberty may be taking place.

The Law Society said that since the publication of its original guidance in 2015, there have been developments relating to deprivation of liberty, including clarification of the position of:

• those under 18
• those in receipt of life-sustaining medical treatment

The Government had planned to replace DoLS with a new framework known as the Liberty Protection Safeguards (LPS), as set out in the Mental Capacity (Amendment) Act 2019.

However, On 5 April 2023, the Government announced its decision to delay the implementation of the LPS "beyond the life of this Parliament".

The Law Society said: “For several years, it had been anticipated that the developments would be reflected in an updated version of the statutory Code of Practice.

“However, with the announcement of an indefinite delay to the implementation of the LPS in April 2023, there is no immediate prospect of an updated code to accompany the LPS.”

The new guidance, published yesterday (18 March), draws together the assistance that can be found in the case law and from the “practical experience” of the authors who, in different contexts, advise upon and act in cases involving questions of deprivation of liberty, the Law Society noted.

It includes an overview of the legal framework, including the special considerations relating to those under 18.

The guidance applies the framework to different settings, including hospitals, care homes and supported living. For each setting, a list of potentially ‘liberty-restricting’ factors are given that may indicate that a deprivation of liberty is occurring.

The Law Society said “scenarios” are also given, which illustrate: a deprivation of liberty, a potential deprivation of liberty depending on the circumstances, and a situation unlikely to amount to a deprivation of liberty.

“Quick reference guides” have been published for specific care settings: the hospital setting, the psychiatric setting, the care home setting, the supported living setting, the home setting, under 18s and the hospice and palliative setting.

Last week, charity Age UK warned the DoLS process is not working for an “alarming” number of older people.

In a report, the charity called for urgent action to resolve what it describes as an “ongoing human rights crisis” around DoLS, to ensure that the rights of older people who lack mental capacity are not ignored.

Lottie Winson