Update on the Law Commission’s review of the Deprivation of Liberty Safeguards (DOLS) system

01.06.16 | |

 

Some of you will have already seen  Law Commission’s interim statement on its review of the deprivation of liberty safeguards. You can read it 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 of you 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.

 

is disappointing that some of the key safeguards in the original proposals appear to have been watered down.  These include:  any suggestion that the authority of the court should be sought before moving an adult lacking capacity from their home; ongoing oversight by an Approved Mental Capacity Practitioner and the automatic referral to the court for those deprived of their liberty.

 

We are particularly concerned about the wholesale removal of the scheme from the Coroners and Justice Act 2009.  The Commission writes:

 

“We have also concluded that the Coroners and Justice Act 2009 should be amended to remove our proposed scheme from the definition of state detention. In conjunction with the Department of Health’s proposals for a medical examiner system, this will mean that deaths of people subject to our new scheme are reported to medical examiners, who will be under a duty to make enquiries and refer the death to a coroner if the medical examiner forms the opinion that the death was attributable, amongst other matters, to a failure of care. The coroner will have the power to conduct an inquest in an appropriate case but will not be obliged to do so.”

 

We are anxious that this may reduce accountability in the cases of those who die in what in many cases will be “compulsory detention” (even under the narrower definition in  R (Ferreira) v HM Coroner and others [2015] EWHC 2990 (Admin).

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