Law Commission recommends DoLs be replaced by Liberty Protection Safeguards ‘with pressing urgency'

The Law Commission has published it's consultation report on the operation of DoLS after the Cheshire West case. They were asked to carry out the review  by the Department of Health in 2014 in recognition of the explosion of applications following the decision.

After a public consultation in 2015, the Commission has recommended that the current deprivation of liberty procedure be replaced by Liberty Protection Safeguards. In contrast to DoLS, which simply authorise a ‘deprivation of liberty’, the new safeguards would 

“authorise particular arrangements for a person’s care or treatment insofar as the arrangements give rise to a deprivation of liberty. This is an important difference. It focuses attention at the authorisation stage not simply on the binary question of whether a person should be deprived of their liberty or not, but on the question of the ways in which a person may justifiably be deprived of liberty.”

Importantly, this would cover more than one setting so that a fresh application would be unnecessary for say a planned admission to hospital.

In total the Commission makes 44 recommendations and they are set out in Appendix C of the report. They are summarised in the accompanying press release broadly as follows:

• 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
• recommends a wider set of reforms which would improve decision-making across the Mental Capacity Act. This is not just in relation to people deprived of liberty
• all decision makers would be required to place greater weight on the person’s wishes and feelings when making decisions under the Act
• professionals would also be expected to confirm in writing that they have complied with the requirements of the Mental Capacity Act when making important decisions – such as moving a person into a care home or providing serious medical treatment

Nicholas Paines, the Law Commissioner responsible for the project, states in the press release that the current DoLS procedure needs to “be scrapped and replaced right away” but no definitive timetable is set out while the Government’s response is awaited. 

A draft Mental Capacity (Amendment) Bill can be found in Appendix A.

You can read the full report on the DoH website here  and the accompanying press release here.

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