The Law Society has issued a new Practice Note giving guidance on how legal professionals should work with clients who either lack a capacity, may be under duress or may still have capacity but have other issues that require additional support. The note aims to help readers:

• identify vulnerable clients
  
• identify their needs at an early stage and respond appropriately
  
• communicate with them more effectively
  
• address issues they may have relating to mental capacity
  
• work with third parties who can assist them and you to achieve the best possible legal outcomes
  

As ever the Law Society points out that note is for guidance only and is not legal advice. 

You can read the Practice Note on the Law Society site here.

The Law Commission has issued a consultation with a view to replacing the "technical and cumbersome" DoLS process.

It has done so as, 

"the safeguards are not meaningful for disabled and older people and their families, local councils and the NHS are struggling to meet their obligations under the law, and people who live in other settings – such as supported living – are being left unprotected."

The Supreme Court decision in Cheshire West also added to that burden.

The main thrust of the new scheme is that DoLS should be replaced by a new system called
“protective care” underpinned by several fundamental principles:

• A scheme that delivers improved outcomes: protective care must secure the support of disabled people, their family or carers, and professionals. To do this it should deliver – and be seen to deliver – tangible benefits and improved outcomes.
• A Mental Capacity Act-based scheme: the new scheme should be in keeping with the approach, language and empowering ethos of the Mental Capacity Act.
• A non-elaborate scheme: our provisional proposals seek to remove the unnecessary bureaucracy and overly-elaborate procedures that are apparent in the DoLS, while also protecting legal rights and providing meaningful procedural safeguards.
• A convention compliant scheme: it is a basic tenet of our review that the new protective care scheme must be fully compatible with the European Convention on Human Rights.
• A scheme that is supportive of the UN Disability Convention: we are keen to ensure as far as possible that the new scheme is not only compatible with the UN Disability Convention, but is supportive of its aims and aspirations.
• A tailored scheme: the new scheme should be flexible and establish different approaches in particular settings. 

In brief, the new scheme does not speak of deprivation of liberty but instead provides "safeguards for those whose care and treatment arrangements are becoming sufficiently restrictive or intrusive to warrant this. " Where a restrictive care and treatment scheme is required  they would be referred to “Approved Mental Capacity Professional” (AMCP).

The full set of proposals are set out in the consultation documents that can be access using the links below:

• Full consultation
  
• Consultation summary
  

You can also listen to the Law Commission team explain their thinking in a couple of YouTube videos available on this page.

The consultation is open until 2 November 2015 with a final report and a draft Bill in 2016.