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Deprivation of liberty safeguards: 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 will come 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 will come into force on 3 November 2008.

The Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) (Amendment) Regulations 2008 were made on 5th September 2008 and laid before Parliament on 12th 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 will come 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.]

• The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 (opens new window)
• The Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008 (opens new window)
• The Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) (Amendment) Regulations 2008 (opens new window)
• Impact assessment that accompanied the regulations and the deprivation of liberty safeguards Code of Practice through the Parliamentary process