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

On 7 July 2015 we opened a consultation on the law of mental capacity and deprivation of liberty. The consultation is now closed. We published an interim statement on 25 May 2016 and expect to publish a final report with our recommendations and a draft Bill in March 2017.

The Deprivation of Liberty Safeguards (DoLS) 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.

https://www.youtube.com/watch?v=-PMU6K2fYrw

Tim Spencer-Lane also appeared alongside two family carers on Radio 4’s You and Yours programme on 24 August (08:02).

Our consultation paper concluded that the DoLS are ‘deeply flawed’. We provisionally proposed that they be replaced with a new system, to be called ‘Protective Care’. Broadly speaking, protective care had three aspects: the supportive care scheme, the restrictive care and treatment scheme, and the hospitals and palliative care scheme.

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 are working on our final report with our recommendations and a draft Bill expected to be published in March 2017.

Documents and downloads

Project details

Area of law

Public law

Commissioner

Nicholas Paines QC