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Law Commission to review Deprivation of Liberty Safeguards in its entirety

The Department of Health has asked the Law Commission to extend its review of mental capacity and detention to consider the Deprivation of Liberty Safeguards in their entirety.

When the Government’s Law Reform Advisory Body announced its 12th programme of law reform in July 2014, it included a project to consider how deprivation of liberty should be authorised and supervised in settings other than hospital and care homes ie community settings. This was the initial brief from the Department of Health.

The Law Commission has now confirmed that in response to recent developments and following consultation with stakeholders the Department of Health has asked it to extend its review of mental capacity and detention to include reconsidering the frameworks for authorising DoLS under the Mental Capacity Act 2005, in its entirety.

When it announced its original project, the Law Commission said that DoLS had been heavily criticised since their introduction in 2007 for being overly complex and excessively bureaucratic.

It has been suggested that many care staff still do not fully understand them despite attempts to clarify the existing frameworks in judicial rulings and directives.

A House of Lords Select Committee this year concluded that the safeguards were “not fit for purpose” and called for them to be replaced.

The Supreme Court shortly afterwards issued its landmark Cheshire West ruling which has resulted in an increase in the number of people considered to require assessment for safeguards under the DoLS scheme. This in turn has led to an increase in applications to the local authorities and

Court of Protection. Deprivation of Liberty cases in settings not covered by the DoLS, ie supported living, require authorisation by the Court of Protection.

In August 2014, Sir James Munby, President of the Court of Protection, handed down a ruling in which he sought to set out a standardised approach to Deprivation of Liberty cases in the aftermath of the Supreme Court ruling.

It is anticipated that the Law Commission will publish a Consultation Paper in summer 2015 and a final report and draft legislation in summer 2017.

If you have any questions regarding this article then please do not hesitate in contacting Julia Appleton at the details below.

Julia Appleton
020 7227 6758

September 2014
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