Mental Capacity and Deprivation of Liberty

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

Protecting people with dementia and learning difficulties who are deprived of their liberty for treatment or care. Government has said legislation will be brought forward when Parliamentary time allows.

Download the report

Download the summary

Download the Easy Read summary

The problem

The Deprivation of Liberty Safeguards aim to protect people who lack mental capacity, but who need to be deprived of liberty so they can be given care and treatment in a hospital or care home.

If a person’s right to liberty needs to be infringed in other settings, an authorisation must be obtained from the Court of Protection.

The DoLS have been criticised since they were introduced for being overly complex and excessively bureaucratic.

In March 2014, a House of Lords Select Committee published a detailed report concluding that the DoLS were “not fit for purpose” and recommended that they be replaced. At the same time, a case in the United Kingdom Supreme Court held that far greater numbers of people fell to be dealt with under the DoLS system than had previously been thought.

This has placed increasing burdens on local authorities and health and social care practitioners administering the DoLS.

In this video Tim Spencer-Lane, lead lawyer on the project, talks about the DoLS and why they are not working.

Our project

The project was a review of the Mental Capacity Act and the DoLS.

Our consultation paper was published on 7 July 2015. It contained provisional proposals for the reform of the law. During our four month public consultation we attended 83 events across England and Wales. This was one of the most extensive public consultation exercises undertaken by the Law Commission.  We received 583 written responses.

In May 2016 we published an interim statement, summarising the key messages from consultation and setting out some of our initial conclusions.

We published a report setting out our recommendations on 13 March 2017, together with a draft Bill.

Our recommendations

The final report and draft Bill recommends that the DoLS be repealed with pressing urgency and sets out a replacement scheme for the DoLS – which we have called the Liberty Protection Safeguards. In addition the draft Bill makes wider reforms to the Mental Capacity Act which ensure greater safeguards for persons before they are deprived of their liberty.

This would mean:

• enhanced rights to advocacy and periodic checks on the care or treatment arrangements for those most in need
• greater prominence given to issues of the person’s human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised
• extending protections to all care settings such as supported living and domestic settings –therefore removing the need for costly and impractical applications to the Court of Protection
• widening the scope to cover 16 and 17 year olds and planned moves between settings
• cutting unnecessary duplication by taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions
• extending who is responsible for giving authorisations from councils to the NHS if in a hospital or NHS health care setting
• a simplified version of the best interests assessment which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised.

Alongside the final report we also published an impact assessment, the consultation analysis, a summary of the report and an easy read version of the summary. These documents can all be found on this page below.

Result

On 30 October 2017 the Government published its interim response to our report.

The response welcomed the Law Commission’s report and confirmed that they will be engaging with a range of stakeholders to understand in greater detail how the Commission’s recommended changes can be implemented.

The Government’s final response was published on 14 March 2018.

It agrees that the current DoLS system should be replaced as a matter of pressing urgency and broadly agrees with the Commission’s Liberty Protection Safeguards model.

The response concludes that legislation will be brought forward when Parliamentary time allows.

In addition, the Joint Committee on Human Rights has announced an inquiry into the DoLS and the Law Commission’s proposed scheme. This is due to report later this year.