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15th June 2016

Hanging on to the safeguards

It’s nearly a year since the Law Commission made proposals about streamlining and simplifying the whole fraught process of the Deprivation of Liberty Safeguards, part of the Mental Capacity Act which I wrote about in a previous blog (  So if you’re waiting expectantly for implementation of these – don’t hold your breath because the Law Commission have just issued an interim statement which draws back from many elements of their proposals. You can view this statement at:

Just a reminder of how we got to where we are. To deprive someone of their liberty is unlawful, unless we ensure that deprivation has been lawfully authorised. Hence the need for a law to allow this, particularly in view of the number of people living in care homes lacking mental capacity and being restricted in their movements. As we know the law that is in place is proving very cumbersome and costly.

So let’s see what’s been put on the back-burner and what we might see in new law proposals that will hopefully be published before the end of the year.

Keeping it simple

The Law Commission had proposed a wider scheme of supportive care being authorised following an assessment of someone’s care needs. This would have offered greater protection for people who were not yet at the stage of being deprived of their liberty. The Law Commission have pulled back from this (due to cost implications) and have instead focused on their proposals for dealing with cases where someone was at risk of being deprived of their liberty.

They still want a simpler system for this and have proposed that it is no longer the care home who has to make the case that someone should be deprived of their liberty, but this should be the responsibility of the organisation (usually local authority or NHS) who arranged the person’s care.

Burden of proof

Part of the burden of the current system is the number of assessments to be completed. The Law Commission suggest where possible existing assessments and care plans can be relied on to give the information necessary for a deprivation of liberty to be authorised. For more complex cases, or where people are subject to other denial of their rights (such as right to family life – remember DOLS only concerns itself with the right to liberty) then a new role of Approved Mental Capacity Professional (part of the Commission’s original proposals) would be involved in agreeing with these restrictions.

What’s in a name?

Finally, and as a bit of light relief from the complexity of the whole system, the Commission said that the biggest debate during their consultation was about the name for the Deprivation of Liberty Safeguards. A lot of people don’t like it, partly because it sounds like something we wouldn’t want to do to someone. So a few other suggested names are around such as liberty safeguards and capacity safeguards and are now open for comment. If you are interested you can submit suggested names to the Law Commission by 23rd June. I’ll try to keep you informed of developments.

David Beckingham – QCS Expert  Mental Health  Contributor

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