Law Commission recommends DoLs be replaced by Liberty Protection Safeguards ‘with pressing urgency'13/3/2017
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:
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. These Rules amend the Court of Protection Rules 2007 in two respects. They:
Read the SI here. A team of researchers from Cardiff University think that the Court of Protection’s ‘low participation’ model is ‘no longer compatible with developments in international human rights law’. As a result they feel there is “an urgent need to address the model of participation of P in the CoP. This will require revisions to the rules and practice directions, through increased resources for various elements of participation, and by addressing the question of when and how cases should come to the CoP. “ Their thinking is presented in a research report published this month that looks at The Participation of P in Welfare Cases in the Court of Protection. The team of Lucy Series, Phil Fennell & Julie Doughty consider different elements of participation in the CoP in turn, highlighting some particular concerns as below:
The court concluded that the Respondent Patient lacked capacity to revoke the LPA for property and affairs but that it was not to be reinstated. Instead, a professional deputy with whom the Patient had a good working relationship, was appointed and the court authorised the deputy to sell the Respondent's UK property.
Read the full text of the judgment on Bailii The Patient was removed to Portugal by Mrs Kirk who refused to signed a written declaration of authority which would allow him to return to the UK. She was sentenced to 6 months in prison. The committal order was quashed in November 2016 and at this latest hearing the order was set aside because it would be futile to continue to subject Ms Kirk to coercive orders designed to obtain the Patient's return to this country.
Read the full text of the judgment on Bailii |
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