People who are unable to make decisions about their care or treatment are protected under the Mental Capacity Act 2005 by the Deprivation of Liberty Safeguards (DoLS). The Law Society's guide aims to assist health and social care professionals as well as lawyers to identify when the care or treatment of someone amounts to a deprivation of their liberty, so that the authorisation process required by the Safeguards is triggered.
Law Society president, Andrew Caplen, said: "When someone is living with dementia or a learning disability, it is important that the care and treatment they receive is in their best interests. Sometimes that means providing treatment to which they are unable to consent.
"The Deprivation of Liberty Safeguards are there to protect some of the most vulnerable people in our health and care systems. It is essential that any restrictions on their day to day lives are demonstrably proportionate and in their best interests. This new practical guide aims to help health and social care professionals as well as lawyers understand the law and to implement it more effectively."
The guidance covers the legal framework relevant to deprivation of liberty in a wide range of specific care settings:
• Psychiatric settings
• Care homes
• Supported living
• Deprivation of liberty at home
• Under 18s.
The Mental Capacity Act 2005 imposes DoLS, which aim to ensure that persons lacking capacity and residing in care homes, hospitals and supported living environments are not subjected to unnecessary or overly restrictive measures in their day to day care. Liberty-restricting measures, such as regular and/or prolonged restraint, should only be considered as a last resort and put in place when it is in the best interests of the individual and other less restrictive options have been exhausted.
The DoLS have been controversial since their introduction, but in the past year legal judgements – notably Cheshire West – have contested what constitutes a deprivation of liberty. Figures from the Health and Social Care Information Centre reported a 10% rise in DoLS applications last year – and that was before the Cheshire West decision. Since then, it has been reported that DoLS applications have risen significantly.
To read the guidance in full visit: www.lawsociety.org.uk/support-services/advice/articles/deprivation-of-liberty/