Deprivation of liberty safeguards are 'deeply flawed'

The Law Commission is to consider replacing the existing deprivation of liberty safeguards (DoLS) with a new scheme to better support people with care and support needs.

The Mental Capacity Act states that an individual who lacks mental capacity is not capable of understanding or retaining information long enough to be able to make a decision. The DoLS were intended to provide a process for ensuring that those who lack capacity to consent to their care are deprived of their liberty only if it is in their best interests.

Cases in both the UK and at the European Court of Human Rights (ECtHR) have examined the meaning of deprivation of liberty. However, since the Supreme Court broadened the definition, local councils and health care practitioners have had to grapple with the question of how to identify and protect individuals potentially subject to an unauthorised deprivation of liberty.

Further, the DoLS are not intended for older or disabled people, and, according to the Law Commission, fails to protect their rights. The commission has, therefore, concluded that the DoLS are 'deeply flawed' and should be replaced by a new system of protective care.

In a new consultation, launched today, the commission suggests that protections should be extended to people in supported care, A&E, and palliative care. People should also be given access to an advocate to represent them.

Nicholas Paines QC, Law Commissioner for public law, said that DoLS proves that that a one-size approach does not fit all.

'The system of protective care we are proposing could provide meaningful safeguards to, as well as meeting the needs of, those individuals who, due to mental incapacity, cannot consent to their own care,' she added.

Also up for debate is whether best interest assessors should be given professional status and be regulated in the same way as other professions. Such assessments are currently undertaken by workers not directly involved with the individual's care, such as, qualified social workers, nurses, occupational therapists or chartered psychologists.

In addition, the commission is proposing that appeals be heard locally, by a specialist tribunal, rather than centrally by the Court of Protection.

The consultation is open until 2 November 2015.

Esther Nimmo is an editorial assistant at Solicitors Journal

esther.nimmo@solicitorsjournal.co.uk @EstherNimmo