Rescare covered the issue of DOLS and the repercussions of the Cheshire West case in several articles in Resnews, our newsletter to members, in 2016 and 2017. One of the repercussions of that case was that the Court of Protection became clogged with literally thousands of DOLS applications from local authorities, despite various attempts to develop a fast-tracking mechanism. The feeling of many was that the current situation re DOLS is unsustainable, not least the Law Commission, who in March 2017 called for DOLS to be replaced ‘as a matter of pressing urgency’.
We are grateful to the 39 Essex Street chambers for alerting us to the following in its latest ‘Mental Capacity’ bulletin:
Whilst we await the Government’s response to the Law Commission’s Mental Capacity and Deprivation of Liberty report, the Joint Committee on Human Rights has launched an inquiry into ‘the right to freedom and safety: Reform of the Deprivation of Liberty Safeguards.’
The Committee has issued an open call for evidence from interested parties on:
Submissions should be no more than 1,500 words and the deadline is 2 March 2018. Further information can be found here.
The deadline is today! (as I write). Apologies for not alerting you to this earlier… but I think it worth reprinting some words from the Parliamentary Joint Committee’s own website which summarise pretty concisely the current situation re DOLS and how we got here. Hopefully the Health Minister will make that final response in Spring 2018 – if Spring ever arrives, and Brexit-related parliamentary business permitting!
Inquiry: The Right to freedom and safety: Reform of the Deprivation of Liberty Safeguards.
Joint Committee on Human Rights
The right to personal liberty is one of the most fundamental human rights, and can be traced back to Magna Carta. Article 5 provides that everyone has the right to liberty and security. No one may be deprived of liberty without a legitimate reason. If a person is deprived of liberty, certain safeguards must be provided; these include entitlement to take proceedings by which the lawfulness of the detention is decided speedily by a court, and the person’s release if the detention is not lawful.
The Deprivation of Liberty Safeguards (DoLS) scheme, set out in the Mental Capacity Act 2005 (MCA), safeguards against arbitrary detention for people who are deemed to lack capacity to consent to their care or treatment.The DoLS aim to ensure that people are only deprived of their liberty when it is in their best interests and there is no other less restrictive way to provide necessary care and treatment.
In 2014 the Supreme Court decision in the case of Cheshire West significantly widened the definition of a deprivation of liberty. The judgment has resulted in a tenfold increase in the number of DoLS applications being made in recent years. Local Authorities have struggled to cope with the resource implications of the judgment and a very large backlog of cases has built up.
Immediately prior to the Cheshire West judgment, the House of Lords Select Committee on the Mental Capacity Act had concluded ‘… far from [DoLS] being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned.’ They have also been widely criticised for being overly complex and bureaucratic.
In response to this situation the Government asked to Law Commission to look at ways to reform the legislation in this area.
In March 2017, the Commission published its final report Mental Capacity and Deprivation of Liberty which called for DoLS to be replaced ‘as a matter of pressing urgency’ with a new scheme called the Liberty Protection Safeguards (LPS).
On 30th October 2017 in a Written Ministerial Statement, the Health Minister issued an interim response to the Law Commission’s report, undertaking to engage in a further period of consultation and promising a final response in spring 2018.