English Law Commission Consultation on Mental Capacity and Deprivation of Liberty

The Law Commission of England has launched a consultation on the law of mental capacity and deprivation of liberty that will continue until November 2015: 

"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."

"Our consultation paper concludes that the DoLS are ‘deeply flawed’. We provisionally propose that they be replaced with a new system, to be called ‘Protective Care’. This system is not focused on authorising deprivations of liberty, but instead upon providing appropriate care and better outcomes for people who lack mental capacity and helping their family and carers."

The consultation paper is available on the Commission website.

The Commission expects to produce a final report with recommendations and a draft Bill in 2016.