Law Commission delays final report on deprivations of liberty until March 2017

The Law Commission has delayed publication of its final report on mental capacity and deprivations of liberty.

The Government’s law reform advisory body had intended to publish the report, its recommendations and a draft Bill by the end of the year, but said it now expected to do so next March.

In a communication with stakeholders, Tim Spencer-Lane, a lawyer in the Commission’s Public Law Team, said: “The reason for the delay is the complexity of the task of drafting legislation on such an important issue. It is vitally important to get the law right here. Badly drafted, over-complicated law is a big part of the problem with the current DoLS [Deprivation of Liberty Safeguards], and we do not want to fall into the same trap again.

“We are very aware that the project deadline was brought forward at the request of the Department of Health and for a good reason: there is an urgent need for the system to be improved. We know too that many stakeholders are waiting for our report and draft Bill and will be disappointed with any delay. For this we apologise.

“But we are convinced that it is far more important to deliver a fully completed draft Bill that can deliver effective safeguards to those being deprived of liberty. We are also confident that our  new publication date will not delay the introduction of legislation into Parliament, should the Government wish to do so.”

Spencer-Lane added that it would be for the Government to decide how to take forward the recommendations and draft Bill.

In May this year the Law Commission said in an interim statement that the problems with the DoLS could be resolved only by their wholesale replacement and that responsibility for establishing the case for a deprivation of liberty should be shifted onto commissioning bodies such as the NHS or local authority.

This was its initial conclusion following a four-month consultation, in which it proposed that the DoLS should be replaced with a new system to be called ‘Protective Care’.

However, the Law Commission instead decided that a new scheme should focus solely on ensuring that those deprived of their liberty have appropriate and proportionate safeguards, “and should not seek to go as widely as the protective care scheme”.