Law Commission urges replacement of "flawed" Deprivation of Liberty Safeguards

The Law Commission has proposed replacing the “deeply flawed” Deprivation of Liberty Safeguards (DoLS) with a new system, to be called “Protective Care”.

Launching its consultation on the law of mental capacity and deprivation of liberty, the Government’s law reform advisory body said its proposed new system would not be focused on authorising deprivations of liberty, "but instead upon providing appropriate care and better outcomes for people who lack mental capacity and helping their family and carers”.

The consultation, which can be viewed here, also says:

• People who lack capacity and are living in care homes, supported living and shared lives accommodation should be provided with a set of safeguards intended to ensure that their accommodation and care and treatment are right for them.
• Additional safeguards would then apply if a person accommodated in these settings required some restrictive forms of care or treatment. Treatment of this kind should be authorised with a minimum of bureaucracy by an independent professional to be known as an Approved Mental Capacity Professional.
• A separate scheme of safeguards would apply for those accommodated in hospital settings and palliative care, and be tailored to recognise that people’s accommodation in these settings is usually temporary.
• Safeguards would also apply for those people deprived of liberty in family homes or other domestic settings, and these would recognise the special sensitivities that surround a person’s own home.
• Anyone subject to the Protective Care scheme should be provided with an advocate to represent their views and wishes, and that any restrictive treatment and care decisions should be challengeable in a specialist tribunal, rather than in a court.

Nicholas Paines QC, Law Commissioner for public law, said: “Experience with the Deprivation of Liberty Safeguards teaches us 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.

“The Deprivation of Liberty Safeguards have been called ‘not fit for purpose’. The reforms we are provisionally proposing would sweep away the DoLS and establish a new purpose for Protective Care – to provide appropriate care and better outcomes for disabled and older people and their families.”

The Law Commission said it expected to publish a final report with its recommendations and a draft Bill in 2016.

This would be in line with the Minister for Community and Social Care’s announcement last month that the review of the law in this area should be accelerated.

The original timetable would have seen the Law Commission publish its findings in 2017.

The Law Commission consultation runs until 2 November 2015.