Mental capacity and deprivation of liberty: the Law Commission’s consultation paper
| DOI | https://doi.org/10.1108/JAP-08-2015-0022 |
| Pages | 331-334 |
| Published date | 12 October 2015 |
| Date | 12 October 2015 |
| Author | Tim Spencer-Lane |
| Subject Matter | Health & social care,Vulnerable groups,Adult protection |
Mental capacity and deprivation of liberty:
the Law Commission’s consultation paper
Tim Spencer-Lane
Tim Spencer-Lane is a
Lawyer at Law Commission,
London, UK.
Abstract
Purpose –The purpose of this paper is to introduce the readership to the consultation being held by the Law
Commission concerning proposed revisions to the Deprivation of Liberty Safeguards (DoLS).
Design/methodology/approach –Discussion of the consultation being held by the Law Commission
concerning proposed revisions to the DoLS.
Findings –These are as yet unknown as the consultation period is ongoing –it is planned that a future paper
will examine the findings and recommendations from the consultation process.
Practical implications –There has been criticism of the DoLS since their introduction in 2009. A new
scheme provides the opportunity to respond to some of the criticisms and to develop more appropriate
processes. The paper invites readers to take part in the consultationprocess and to respond to the proposals
that have been developed.
Social implications –A new and more appropriate scheme would be beneficial for service users and
families/caregivers.
Originality/value –This is the first opportunity for a revision to the DoLS scheme and introduction of the
proposed scheme and the consultation process to the readership is highly appropriate and valuable to
the Journal.
Keywords Safeguarding, Deprivation of Liberty Safeguards, DoLS, Legal, Law Commission,
Mental capacity
Paper type Case study
The Law Commission’s consultation paper on deprivation of liberty was published on 7 July
(Law Commission, 2015). It puts forward a comprehensive replacement scheme for the
Deprivation of Liberty Safeguards (DoLS).
The DoLS have been subject to considerable criticism ever since their introduction. They are
cumbersome, overly bureaucratic and are not meaningful for disabled people and their families or
carers, and fail to secure buy-in from health and social care practitioners. Perhaps the most
important consequence is likely to be that the rights of people who are deprived of liberty and
those supporting them are difficult to discern.
We consider that there is a compelling case for replacing the DoLS. In designing a new system
we have identified a number of key principles, namely that the new scheme should be:
1. aimed at delivering improved outcomes for people with health and care needs, and their
families and carers;
2. rooted in the Mental Capacity Act;
3. straightforward and non-elaborate;
4. compliant with the European Convention on Human Rights;
Received 6 August 2015
Revised 6 August 2015
Accepted 14 August 2015
DOI 10.1108/JAP-08-2015-0022 VOL. 17 NO. 5 2015, pp. 331-334, © Emerald Group Publishing Limited, ISSN 1466-8203
j
THE JOURNAL OF ADULT PROTECTION
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PAG E 33 1
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