Mental Capacity Act: Law Society's Deprivation of Liberty Guidance - DAC Beachcroft

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Mental Capacity Act: Law Society's Deprivation of Liberty Guidance

Published On: 23 April 2015

The Law Society has  published its "Identifying a deprivation of liberty: a practical guide" which provides much needed "practical assistance" to organisations and health and social care professionals, together with useful links to further resources, including a 20 minute pod cast, key cases, and official guidance.

Commissioned by the Department of Health, it may be seen 'as an informal update to Chapter 2 of the DOLS Code of does not have the same statutory status, and the views expressed in it are the views of the authors rather than representing Department of Health policy' (pg 2). Nor is it legal advice.


The legal complexities and fast pace of change make it all the more important that professionals have access to practical guidance to identify a deprivation of liberty in a care setting to ensure legal and regulatory compliance.

Since Cheshire West [2014] care arrangements in areas such as intensive care, palliative care, for under 18s and in the home have been in the spotlight. The guidance aims to "provoke professionals to seek further specific advice in difficult cases as it does to give answers" (pg 3). Key aspects are summarised here

Market perspective

Protecting vulnerable adults and ensuring their rights and freedoms are not unduly restricted is important. Where a person is unable to make decisions about where they should live or their care and support arrangements, this Guidance will support  compliance with the law and guidance.

Our view

This Guidance is a welcomed and important update. Organisations and professionals should  ensure:

  • Staff are up to date with the case law;
  • The Guidance is used to prompt them to 'ask the right questions';
  • The necessary policies/procedures are in place;
  • Circumstances where action may be necessary and legal advice may be required are identified.

How we can help

We understand the legal complexities that surround identifying a deprivation of liberty and ensuring legal and regulatory compliance. We can help your organisation by: