Deprivation of Liberty Safeguards-MENTAL CAPACITY ACT 2005

The Safeguards for the “Deprivation of Liberty” (DOL) are set to come in to force in April 2009 as amendments to the Mental Capacity Act 2005. On the 1st October 2008 the changes to the Mental Health Act 1983 come in to force.

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Deprivation of liberty safeguards

The context for the deprivation of liberty safeguards in the Mental Capacity Act 2005 is the government commitment in the White Paper Our Health, Our Care, Our Say that people with ongoing care needs, whether their needs arise in older age, or through illness or disability, should be cared for in ways that promote their independence, well-being and choice. It follows from this that people should be cared for in the least restrictive regime practicable. The Government does accept, however, that there will be some people who will need to be cared for in circumstances that deprive them of

liberty because it is necessary to do so, in their best interests, in order to provide the care or treatment they need to protect them from harm. The Government does not consider that deprivation of liberty would be justified in large numbers of cases but recognises that such circumstances arise, for example for some people with severe autism, profound learning disabilities or dementia.

The aim of the deprivation of liberty safeguards is to provide legal protection for those vulnerable
people who are deprived of their liberty otherwise than under the Mental Health Act 1983, to prevent arbitrary decisions to deprive a person of liberty and to give rights to challenge deprivation of liberty authorisations. The safeguards apply to people who lack capacity to consent to care or treatment, and who are suffering from a disorder of the mind. The Government expects that implementation of the safeguards will reduce the numbers of people deprived of their liberty in care homes and hospitals.

It is planned that the safeguards will come into effect from 1 April 2009. The principles of the Mental Capacity Act 2005 will apply to the operation of the safeguards, principally the requirement to act in the best interests of the person lacking capacity.

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