The Law Society has today issued new guidance on deprivation of liberty safeguards (DOLS) to help lawyers meet an expected 10-fold surge in the number of legal challenges to DOLS over the coming year.
The surge, predicted by president of the Family Division, Sir James Munby, follows the Supreme Court ruling in P v Cheshire West and Chester Council  that severely disabled people have the same universal right to ‘physical liberty’ as anyone else.
The guidance aims to help lawyers ensure that people lacking the capacity to consent to their care and treatment are assisted in their best interests and also are not unlawfully deprived of their liberty.
Law Society president Andrew Caplen said: ‘The deprivation of liberty safeguards are there to protect some of the most vulnerable people in our health and care systems. It is essential that any restrictions on their day to day lives are demonstrably proportionate and in their best interests.
‘This new practical guide aims to help health and social care professionals as well as lawyers understand the law and to implement it more effectively.’
The guidance emphasises the importance of identifying those who are deprived of their liberty so that their circumstances can be the subject of regular independent checks - external scrutiny free of conflict of interests - to ensure that decisions made about them are actually in their best interests.
It provides practical assistance in identifying whether people are deprived of their liberty, allowing appropriate steps to be taken to secure their rights under article 5 (the right to liberty and security) of the European Convention on Human Rights.
The guidance relates only to those who lack the mental capacity to consent to their residential and care arrangements; it does not cover situations where those with capacity are objecting to the same.
It also focuses on people aged 16 and over because that is the minimum age at which the Court of Protection can authorise a deprivation of liberty.
Its principal aim is to assist in identifying a deprivation. It does not address in detail how that deprivation ought to be authorised.
The authors say: ‘Given that there remain a significant number of areas in which the law has yet to be clarified by the courts, this guidance serves as much to provoke professionals to seek further specific advice in difficult cases as it does to give answers.
‘It will, inevitably, be superseded in due course by further judgments of the court, but will at least provide a starting point to assist professionals to ask the right questions.’