Law Commission to examine DOLS

The Law Commission, independent law adviser to the Government, has announced a review of best interests deprivations of liberty as part of its 12 programme of Law Reform.
The deprivation of liberty safeguards (DOLS) were introduced into the Mental Capacity Act 2005 in order to ensure that deprivations of liberty in a person’s best interests are properly regulated in line with the person’s human rights. DOLS applies only to deprivations of liberty that take place in hospitals and care homes. If a person’s right to liberty is compromised in other settings, his or her deprivation of liberty has to be authorised and supervised by the Court of Protection.

The DOLS provisions have been criticised since they were introduced for being overly complex and excessively bureaucratic. It is said that staff often do not understand them and that there is confusion over the differences between the powers of the Mental Health Act 1983 and DOLS.

In March 2014 a House of Lords select committee conducting a post-legislative scrutiny of the Mental Capacity Act found that DOLS were not “fit for purpose” and called for them to be replaced. The committee also recommended that the new system should extend to cover people in supported living arrangements, not just hospitals and care homes. Shortly afterwards, the Supreme Court found that a person will be deprived of their liberty in more situations than had previously been thought to be the case.

The Law Commission’s project will consider how deprivation of liberty should be authorised and supervised in settings other than hospitals and care homes, where it is possible that Article 5 rights would otherwise be infringed. In addition to considering these settings, the project will also assess the implications of this work for DOLS to ensure that any learning which may be relevant is shared.
The Law Commission is starting work on this project in summer 2014 and expects to publish its report, with recommendations for reform and a draft Bill, in summer 2017.
For further information about the review, or if you have any thoughts/comments/suggestions please contact Tim Spencer-Lane at the Law Commission (tim.spencer-lane@lawcommission.gsi.gov.uk)