Deprivation of liberty: Law Commission eyes ‘simpler’ system to protect human rights.
In September 2014 the Law Commission announced a project looking at Mental Capacity and Detention: “We are starting work on this project in summer 2014 and expect to publish our report, with recommendations for reform and a draft Bill, in summer 2017”.
The government asked the commission to draw up proposals for reform after the landmark ‘Cheshire West’ Supreme Court ruling triggered a surge in deprivation of liberty cases, and a highly-critical House of Lords committee report described the Dols as “not fit for purpose”
In summary, the Law Commission is looking at the Mental Capacity Act 2005, the Mental Health Act 2007, and the Deprivation of Liberty Safeguards (DoLS). DoLS were introduced into the Mental Capacity Act by the Mental Health Act (in response to a ruling by the European Court of Human Rights on whether an informal admission to a psychiatric hospital of a compliant but incapacitated person amounted to a deprivation of liberty under ECHR Article 5)
Last week, speaking at the Association of Directors of Adult Social Services (ADASS) spring seminar, the Law Commission’s public law head, Nicholas Paines QC, gave an update on the project.
He told his audience that the Commission will launch a consultation in July (2015) on a proposed new system governing deprivation of liberty.
It was already clear that the Commission wants its proposed replacement for the Deprivation of Liberty Safeguards (Dols) to be simpler for professionals to use without compromising human rights protections. It should cover care homes and hospitals as well as other settings not covered by the Dols, such as supported living.
Paines, who was expressing his own views, since the commission’s final plans for consultation are yet to be finalised, said a “less cumbersome” scheme was needed than DoLS. He pointed to the fact that the complexity of the current situation had required the Law Society to produce almost 140 pages of guidance to help staff identify what constitutes a deprivation of liberty in care.
“You can’t expect a hard-pressed social worker to apply 140 pages of guidance before he or she decides whether what is being proposed is a deprivation of liberty or not,” he said. “There will have to be a simpler, easier to apply set of criteria for triggering our scheme.”
Full details may be found here in Community Care online.