You can read the Law Commission’s interim statement on its review of the deprivation of liberty safeguards here. The statement summarises the responses received to its consultation paper and gives the Commission’s preliminary views as to the way forward.
A total of 583 responses were received after an extension publication to which many readers will have contributed.
In brief the Commission currently concludes:
- There is a compelling case for replacing the DOLS through legislation. The system is currently unsustainable and DOLS has failed to deliver improved outcomes for those lacking capacity and their families.
- Any new scheme must reduce the administrative burden and costs of DOLS.
- A more streamlined and flexible scheme will be introduced with the responsibility for establishing a deprivation of liberty shifted to the commissioner not the provider. The commissioner will in many cases be able to rely on existing assessments of capacity and best interests.
- All those deprived of their liberty would be eligible for safeguards including advocacy and /or assistance and the right to challenge the deprivation of liberty (the original proposal was for automatic referrals to the court). The Commission has not yet decided whether the review should be by the First Tier Tribunal or the Court of Protection.
- Amendments to the MCA will seek to maintain article 8 protections to ensure there is sufficient consideration of the necessity of removing the individual from their home and giving greater priority to their wishes and feelings.
- Some groups may have an additional layer of oversight by an Approved Mental Capacity Professional, limited to a one-off decision whether to agree or not the other deprivation of liberty. These groups are not defined as yet.
- There will be no changes to the Mental Health Act.
- The new scheme should be removed from the Coroners and Justice Act 2009.
The Commission is not seeking further responses except as to one issue- the name of the scheme. Those with suggestions are invited to contact Olivia.Bird@lawcommission.gsi.gov.uk by 23 June 2016.