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Deprivation of Liberties Reform

On 7 July 2015 the Law Commission launched a consultation process regarding proposals for reform to the Deprivation of Liberty Safeguards [DoLS]. The current DoLS scheme has received substantial On 7 July 2015 the Law Commission launched a consultation process regarding proposals for reform to the Deprivation of Liberty Safeguards [DoLS]. The current DoLS scheme has received substantial criticism over the years, for being an overly complex and bureaucratic process, with no real oversight.

The consultation paper considers how the law should regulate deprivations of liberty involving people who lack capacity to consent to arrangements for their care and treatment. In March 2014, the House of Lords Select Committee reviewed the Mental Capacity Act 2005 and concluded that the DoLS were not "fit for purpose". As a result they recommended that the DoLS were replaced. Soon after, the definition of deprivation of liberty was widened in a landmark ruling by the Supreme Court in P v Cheshire West and Chester Council and P&Q v Surrey County Council. Lady Hale held that human rights are the same for everyone: 'If it would be a deprivation of liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person'. This has had quite significant implications on the process resulting in a huge increase in cases. Some of the practical issues arising from these events were previously considered by us earlier this year in this article.

The new system of 'protective care' is expected to focus on provision of appropriate care and better outcomes for people who lack mental capacity and for the supporting family/carers rather than the standard administrative authorisation of deprivation of liberty. The new principles aim to be fully compatible with the European Convention Human Rights. Articles 5 (right to liberty and security) and 8 (right to respect for private and family life) are both relevant in protecting these rights but the paper highlights that the DoLS regime has not paid sufficient attention to article 8 so far.

It is anticipated that the project will involve implementation of a set list of safeguards for those who lack capacity and are placed in care homes, shared accommodation, supported living or hospital and palliative care settings. The nature of the safeguards is expected to vary according to the particular setting they are in and the provisional proposals include protective care for residential as well as community based settings. Widening the scope of relevant healthcare settings should assist with applying the appropriate measures for individual requirements. It is clear that a single approach is not appropriate for all; deprivations of liberty in an intensive care ward or emergency situation should not be dealt with in the same manner as an individual within a long term care home so it is necessary to consider all the circumstances and adopt a more flexible approach. This will need to be exercised with some caution to avoid unnecessary interference with domestic care arrangements or the individual's rights.

Any amendments to the Mental Capacity Act to establish this new scheme would also be supported with a new code of practice. It is anticipated that the role of the best interest assessor will be changed to an 'Approved Mental Capacity Professional' ("AMCP"). The AMCP would be responsible for all 'restrictive care and treatment' assessment referrals, compliance with the Care Act, Mental Capacity Act and health care regulations as well as ensuring ongoing reviews take place. The scheme will still allow a right to seek reviews of the care plan including applications to the first tier tribunal. These decisions can then be appealed at the Upper Tribunal or the Court of Protection.

Further concerns have been raised about the requirement for an inquest to take place where a DoLS order is in place allowing state detention. There have been calls to make changes to the legislation to clarify this position and minimise the distress for families.

This is clearly the start of a lengthy process to introduce some crucial changes to the legal framework concerning mental capacity. There is undoubtedly a difficult balance to be struck between the individuals best interests, assessing risk and effective safeguarding.

For further details or to respond to the consultation with your views please click here

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