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Deprivation of liberty safeguards: regulations and assessor training

  • Last modified date:
    12 June 2009

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Regulations

The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 were made on 9 July 2008. They were subject to the affirmative Parliamentary procedure, so were debated in both Houses of Parliament. They came into force on 3 November 2008.

The Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) Regulations 2008 were made on 14 May 2008 and laid in Parliament on 20 May 2008. They were subject to the negative Parliamentary procedure. They successfully completed their 40 day laying period on 10 July, and they too came into force on 3 November 2008.

The Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) (Amendment) Regulations 2008 were made on 5 September 2008 and laid before Parliament on 12 September 2008. These regulations correct a minor defect in the earlier regulations: they prevent supervisory bodies from selecting paid representatives from amongst their own employees, thus avoiding any conflicts of interest. The regulations are subject to the negative Parliamentary procedure and came into force on 3 November 2008.

The deprivation of liberty safeguards have been introduced into the Mental Capacity Act 2005 by the Mental Health Act 2007.

The safeguards provide a framework for approving the deprivation of liberty for people who lack the capacity to consent to treatment or care in either a hospital or care home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty.

The safeguards legislation contains detailed requirements about when and how deprivation of liberty may be authorised. It provides for an assessment process that must be undertaken before deprivation of liberty may be authorised and detailed arrangements for renewing and challenging the authorisation of deprivation of liberty.

The safeguards’ regulations cover the following topics:

  • the eligibility criteria for, and selection of, deprivation of liberty safeguards assessors
  • timescales within which assessments must be completed
  • the information to be submitted with a request for a standard authorisation of deprivation of liberty
  • the arrangements that are to apply in certain cases where there are disputes about the place of ordinary residence of a person coming within the scope of the deprivation of liberty safeguards provisions
  • the selection and appointment of representatives for people who become subject to a deprivation of liberty authorisation.

The deprivation of liberty safeguards legislation relates to both England and Wales, but the regulations relate to England only. [There will be separate, though similar, regulations for Wales.]

Consultation on Monitoring Regulations

A formal consultation on the Mental Capacity (Deprivation of Liberty: Monitoring and Reporting) and (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2009 began on 19 December 2008. These draft regulations confer power on the Care Quality Commission for the purpose of monitoring, and reporting on, the Mental Capacity Act 2005 Deprivation of Liberty Safeguards. 

The draft regulations also amend regulation 3 of the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008. Regulation 3 currently sets out that one of the requirements for a person to be eligible to carry out a MCA DOLS assessment is that they must be insured in respect of any liabilities arising in connection with carrying out the assessment. We are proposing to amend this regulation so that assessors will be eligible if they have satisfied the supervisory body that they have adequate and appropriate insurance and / or indemnity arrangements in place.

Assessor training

Best interests assessors

  • What constitutes successful completion of training approved by the Secretary of State has recently been clarified as follows:
    Between April and September 2009, a supervisory body may be satisfied that a best interests assessor has successfully completed training approved by the Secretary of State if they have attended all the required teaching provided by an eligible university, or by its approved provider and submitted all the required assignments and / or sat all required examinations.
  • From October 2009, a supervisory body may be satisfied that a best interests assessor has successfully completed a course of study approved by the Secretary of State if they have attended all the required teaching provided by an eligible university, or by its approved provider, and achieved a satisfactory standard in all the required assignments and / or examinations.

Mental health assessors

The regulations state that the course of training approved by the Secretary of State is the Deprivation of Liberty Safeguards Mental Health Assessors training programme made available by the Royal College of Psychiatrists.

The Royal College of Psychiatrists Deprivation of Liberty Safeguards Mental Health Assessors training programme is now available, free of charge, on-line to all NHS funded doctors in England. Doctors can register at:

The Royal College of Psychiatrists Deprivation of Liberty Safeguards Mental Health Assessors Training Manuals are free of charge to all NHS funded organisations in England.

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