Mental capacity and deprivation of liberty: the Law Commission’s review of the deprivation of liberty safeguards

Published date14 August 2017
Date14 August 2017
AuthorTim Spencer-Lane
Subject MatterHealth & social care,Vulnerable groups,Adult protection,Safeguarding,Sociology,Sociology of the family,Abuse
Mental capacity and deprivation of
liberty: the Law Commissions review
of the deprivation of liberty safeguards
Tim Spencer-Lane
Purpose The purpose of this paper is to provide a brief overview of the Law Commissions final report and
recommendations on the reform of the deprivation of liberty safeguards under the Mental Capacity Act.
Design/methodology/approach Summary of main report.
Findings The proposalscontained in the Law CommisionReview and proposals forlaw reform are outlined.
Originality/value This is a summary.
Keywords Mental health, Mental capacity, Older people, Safeguarding, Learning/intellectual disabilities, Legal
Paper type Viewpoint
The Law Commission sreportMental Capacity and Deprivation of Libertywas published on
13 March 2017 (Law Commission, 2017). The report (which includes a draft Bill) is the
culmination of a thr ee year review of th e deprivation of lib erty safeguards (D oLS) under
the Mental Capacit y Act. The Law Commissions report calls for the DoLS to be replaced, and
sets out a new scheme called the Liberty Protection Safeguards. This paper summarises the
Law Commissions recommendations.
The Law Commissions review of the DoLS began in 2014 following a reference from the
Department of Health. The reference was a response to a report by a House of Lords Select
Committee which concluded that the DoLS legislation was not fit for purpose(House of
Lords, 2014), and to a decision of the Supreme Court (known as Cheshire West) which gave a
significantly wider interpretation of deprivation of liberty than had been previously applied.
In July 2015 the Law Commission published a consultation paper setting out provisional
proposals for law reform. An interim statement was published in May 2016.
The case for reform
Responses to the Law Commissions consultation paper confirmed that t he current regime i s in
crisis and needs to be overhauled. The DoLS were described as an administrative and
bureaucraticnightmareand criticisedfor placing additional pressureon an already over-stretched
system. A number of responses from familiesdescribed how distressing and confusing the DoLS
processhad been for their loved ones. Hospital cliniciansreported that the DoLS processdelivered
no tangiblebenefits to the persons treatmentplan (particularly in intensivecare units and end of life
care) and deflected resources away from the provision of treatment. Consultees generally
described the language adopted by the DoLS as, atbest, unhelpful, and felt that the DoLS were
out of kilter with the empowering philosophy of the Mental Capacity Act.
Many responses (particularly from NHS bodies and local authorities) pointed to the practical and
financial impact of Cheshire West, such as the increasing backlog of cases, referrals for
Received 3 April 2017
Revised 7 June 2017
Accepted 10 June 2017
Tim Spencer-Lane is a
Lawyer at Law Commission,
London, UK.
VOL. 19 NO. 4 2017, pp. 220-227, © Emerald Publishing Limited, ISSN 1466-8203 DOI 10.1108/JAP-04-2017-0016

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