Mental health law briefing 231 – Law Commission interim statement

The Law Commission has published an interim statement about its proposals regarding the replacement to the Deprivation of Liberty Safeguards (DoLS) scheme. The statement significantly moderates the proposals initially consulted upon.

Regarding mental health, it is no longer proposed that there will be any legislative reform in respect of patients treated in mental health hospitals. Compliant patients who lack capacity will accordingly have to be detained using the existing powers under the Mental Health Act. That is somewhat ironic given that the case of HL, who was such a patient, led to DoLS in the first instance.

The proposal for a wider supportive care scheme, which would have applied to people lacking capacity but not deprived of their liberty, has also been dropped. So too has a separate scheme for hospital settings. It is now intended that there will only be one scheme that will apply to all settings – not just hospitals and care homes – including supported living, shared lives schemes and even domestic and private settings.

The details of the scheme are not set out in the statement, but there will certainly be rights to reviews, appeals and to advocacy. Significantly, it is proposed that the public authority that arranges the care will have greater responsibility for the scheme rather than the provider. If that results in providers no longer being required to initiate the process by completing and submitting application forms, that is to be welcomed.

Currently the Chief Coroner’s view is that DoLS authorisations constitute state detention and so inquests are required in respect of deaths of people subject to them. The Law Commission also proposes that the Coroners and Justice Act 2009 be amended to remove the scheme from the definition of ‘state detention’. If implemented, that would mean that there would no longer need for an inquest solely because the person was subject to the regime.

The Law Commission will now draft legislative proposals and a final report by the end of the year.

Finally, the Law Commission welcomes a name for the new regime. Current front-runners include ‘liberty safeguards’ and ‘capacity safeguards’. Any suggestions should be emailed by 23 June to olivia.bird@lawcommission.gsi.gov.uk.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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