Deprivation of liberty: Human rights (DoLS)

The Liberty Protection Safeguards (LPS)

DoLS was due to be replaced by a new law entitled the Liberty Protection safeguards (LPS) in 2020 but this was postponed due to the Covid-19 pandemic. At the time of writing LPS is expected to be in place from April 2022 but the two schemes will run alongside each other for up to a year.

LPS will be applicable to people over 16 in settings other than just care homes and hospitals. The DoLS Supervisory Body will be known as the Responsible Body and who this will be will depend upon where the potential Deprivation of liberty is taking place.

In order to give an authorisation the Responsible Body will need to be satisfied that the individual lacks capacity to consent to the arrangement; that they have a mental disorder within the meaning of section 1 MHA 1983; and that the arrangements made are necessary to prevent harm to the person and proportionate in relation to the likelihood and severity of said harm.

There is a process of “pre-authorisation review” which has to be carried out by someone who is uninvolved in the day-to-day care and treatment of the person. Some cases will have to be dealt with by an Approved Mental Capacity Professional (AMCP), a new role designed to enhance and replace the BIA. Whoever carries out the pre-authorisation review has to consult with interested parties. The person deprived of their liberty will be entitled to be supported by an “Appropriate Person”.

There will be new Regulations and an updated and revised MCA 2005 Code of practice.