Deprivation of Liberty Safeguards

Many people with Alzheimer’s may eventually have to move into a care home once their Alzheimer’s a progresses to a certain stage or if they have other illnesses or disabilities that make it difficult for them to remain at home.

Sometimes, caring for a person with Alzheimer’s involves reducing their independence or restricting their free will in some way. In some cases, this may amount to a ‘deprivation of liberty’.

If a care home or hospital is to deprive a person of their liberty, they must get permission by following the Deprivation of Liberty Safeguards (DoLS). These are a set of checks which are designed to ensure that persons who are deprived of their liberty are protected.

However, following a legal ruling in 2014, those individuals who are subject to DoLS has significantly increased. This meant the number of application for depravation of liberty orders has grown substantially and local authorities are now struggling to cope.

In 2014, the House of Lords published a report which determined that the DoLS were no longer “fit for purpose” and that they should be changed. The report also found that a growing number of DoLS referrals were not being dealt with at all or that the statutory time-scales were being breached regularly.

As a result the Law Commission has now recommended that the DoLS be replaced with a scheme known as Liberty Protection Safeguards (LPS). The LPS scheme widens protection. It allows for care or treatment to be received in the home, rather than at a care home and ensures that safeguards can be provided in a simple an un-obstructive manner.

Under the new proposed scheme there is also a greater requirement on those making the decisions to take into account the person’s wishes and feelings. Confirmation should be given in writing that the requirements of the Mental Capacity Act 2005 have been met and complied with.

The proposed reforms suggest that, when a potential deprivation of liberty is identified, the responsible body would be required to arrange a capacity assessment, a medical assessment and a check that the proposed care placement is ‘necessary and proportionate’. This last part in effect replaces the ‘best interests’ assessment. Each case would then be checked by an independent reviewer.

Regardless of whether these LPS proposals are adopted, it is important that the care home take the following steps in order to comply with the legislation in this area:-

1. Make sure they have properly carried out capacity assessments and can produce evidence to document this. The CQC are critical of homes that take a ‘blanket approach’, arguing that this “suggests that their focus may be more on managing organisational risk than delivering person-centred care”.
2. Make sure that staff are properly trained on DoLS and the wider implications of the Mental Capacity Act 2005.
3. Make sure that they have a consistent approach to carrying out and documenting how capacity assessments and best interests decision making. There should be documentary evidence on each occasion of family and other professionals being involved.