Mental Capacity and Deprivation of Liberty’

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Mental Capacity and Deprivation of Liberty’

On 25 May 2016, the Law Commission published an interim statement on the consultation that it launched in July 2015 on the law of mental capacity and deprivation of liberty. The  Law Commission expects to publish a final report with their recommendations and a draft Bill in December 2016, it will then be for the Government to decide how the recommendations will be taken forward.

What is a Deprivation of Liberty?

Being deprived of liberty means a person is not free to go anywhere without permission or close supervision (usually continuous control and supervision), or they are kept in a locked room/ward and that person lacks capacity to consent to these arrangements. This is against the law unless it is done under the rules set out in the Mental Capacity Act.

What are Deprivation of Liberty Safeguards?

Deprivation of Liberty Safeguards (DoLS) are a set of checks that are designed to ensure that a person who is deprived of their liberty is protected. They aim to protect people who lack mental capacity, but who need to be deprived of liberty so they can be given the care and treatment that they require, either in a hospital or care home. In other settings, for example somebody’s own home, permission must be obtained from the Court of Protection.

So what is changing?

In March 2014, a House of Lords Select Committee published a thorough report which concluded that the DoLS were “not fit for purpose” and recommended that they be replaced. The impact of DoLS was greater than expected as more people fell within the definition than initially thought.  DoLS have been criticised for being overly complex, technical and legalistic and extremely administrative, which has placed a huge burden on local authorities and health and social care practitioners administering the DoLS.

The Law Commission has concluded that legislative change is the only satisfactory solution to the problems.

The consultation paper set out a new scheme called protective care which has three aspects: the supportive care scheme; the restrictive care and treatment scheme; and the hospitals and palliative care scheme. Some consultees were critical of the proposed new terminology. The Law Commission have therefore invited further views (by 23 June 2016) on the name that should be give to the new scheme.

The Law Commission propose to recommend a more “straightforward, streamlined and flexible scheme for authorising a deprivation of liberty”. The commissioning body (such as the NHS or local authority) that is arranging the relevant care or treatment would have the responsibility for establishing the case for a deprivation of liberty rather than the care provider.

The Law Commission are working on their final report with their recommendations and a draft Bill in December 2016. It will then be for the Government to decide how the recommendations will be taken forward, it is clear that huge changes are on the way.

For further information on the Law Commission’s current project status please go to www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/.


Glen Miles, Partner, Head of Vulnerable People, asb lawFor more information please contact Glen Miles, Partner, Head of Vulnerable People.

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Published: 15 Jun 2016


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