21 Jun 2023
by Policy, Practice and Innovation Team

The Department of Health and Social Care have issued an update on the Deprivation of Liberty Safeguards (DOLs), acknowledging the decision to delay the implementation of the Liberty Protection Safeguards (LPS) established by the Mental Capacity (Amendment) Act 2019, which replace the DOLs, beyond the life of this Parliament.

DHSC say they remain committed to publishing a response to last year's consultation, hopefully later this year, and are working to update the Mental Capacity Act 2005 Code of Practice with the Ministry of Justice. 

DHSC remind providers it is vital they continue to observe the provisions of the Mental Capacity Act (MCA) 2005 regarding deprivation of liberty, so the rights of those who lack the relevant capacity are protected. 

Note: In the case of homecare providers, to whom the current DOLs do not apply, this means recording the decision on whether a person lacks capacity to consent to a restriction amounting to a potential deprivation of liberty. Then contacting the local authority or Integrated Care Board (depending on who is funding the care) to alert them to the potential deprivation (and recording that contact).

The local authority / ICB would then need to assess the situation and decide whether there is a deprivation and if so, would need to apply to the Court of Protection to authorise it.  A similar process applies where the person pays for their care privately from a provider.

More from the Homecare Association's Mental Capacity Factsheet, written by Anthony Collins Solicitors LLP, which includes a template for recording decisions (member log-in required).


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