Law Commission commits to scrapping DoLS but will urge less wide alternative

The problems with the Deprivation of Liberty Safeguards (DoLS) can be resolved only by their wholesale replacement and responsibility for establishing the case for a deprivation of liberty should be shifted onto commissioning bodies such as the NHS or local authority, the Law Commission has said in an interim statement.

The Government’s law reform advisory body said 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 has now 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”.

The advisory body had said that under 'Protective Care', the focus would not be on authorising deprivations of liberty but instead upon providing appropriate care and better outcomes for people who lack mental capacity and helping their carers.

The consultation, which was issued in July last year, proposed that:

• People who lacked capacity and were 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 were 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 surrounded 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.

In the interim statement, which can be viewed here, the Law Commission set out its interim conclusions.

It said that the consultation had confirmed that there was “a compelling case” for replacing the DoLS. “Most consultees perceived the DoLS to be overly technical and legalistic and, more significantly, to have failed to deliver improved outcomes for people who lack capacity and their families and other unpaid carers.”

Nor were the DoLS designed to deal with the increased numbers of people considered to be deprived of liberty following the Supreme Court ruling in Cheshire West.

The financial pressures weighed heavily on the minds of consultees, the Law Commission revealed. “The widespread reports of backlogs, breached statutory timescales and increased workloads mean that any notion that the existing system can be patched up to cope even in the short term, in our view, is not sustainable.”

The Law Commission also said most consultees had welcomed the general thrust of its provisional proposals and indicated support for the core elements of protective care. “But a number of concerns were raised about the financial implications. Many felt that protective care, whatever its merits, would be too costly to implement, particularly in the current economic climate, and that any new scheme needed to focus much more on securing cost efficiencies and value for money.”

The advisory board acknowledged that there was “some force” in those arguments. But it said that it did not accept that safeguards should be “reduced to the bare minimum or that we should not consider any reforms that may generate additional costs”.

It remained committed to the introduction of a new scheme that delivered article 5 ECHR safeguards in a meaningful way for the relevant person and their family. “Moreover, there are some reforms that remain fundamental to our new scheme and will need to be properly financed, such as rights to advocacy,” the Law Commission said.

The statement said the Commission’s view, nevertheless, was that the new scheme “must demonstrably reduce the administrative burden and associated costs of complying with the DoLS by providing the maximum benefit for the minimum cost”.

With that in mind, the Law Commission said it had concluded that the 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”.

The Law Commission now proposes to recommend a "more straightforward, streamlined and flexible" scheme for authorising a deprivation of liberty.

“The responsibility for establishing the case for a deprivation of liberty will be shifted onto the commissioning body (such as the NHS or local authority) that is arranging the relevant care or treatment, and away from the care provider,” it said.

“This should provide greater clarity, since the body directly responsible for the proposed deprivation of liberty would need to provide evidence to support its case. The required evidence would include a capacity assessment and objective medical evidence of the need for a deprivation of liberty on account of the person’s mental health condition. The commissioning body would also be required to undertake certain steps such as arranging for the provision of advocacy (or assistance from an appropriate person) and consulting with family members and others.”

The Law Commission added that all those deprived of liberty would be eligible for safeguards to secure the protection of their rights under article 5 of the ECHR. “For example, all those deprived of their liberty (as well as others, such as family members and advocates) would have rights to seek reviews of their deprivation of liberty and bring legal proceedings to challenge the deprivation of liberty. There will also be comprehensive rights to advocacy.”

The statement said the Law Commission wanted to avoid unnecessary duplication in the new scheme by enabling the commissioning body to make use, where one exists, of the person’s existing care plan under the Care Act or the Social Services and Well-being (Wales) Act. “Similarly, we want to ensure that existing review processes under that legislation can be used for the purpose of reviewing deprivations of liberty. For similar reasons, we do not intend that the commissioning body should always be require fresh assessments to be carried out. It should be open to the commissioning body to rely on existing assessments (where appropriate).”

By way of amendments to the rest of the Mental Capacity Act, the Law Commission is also to seek to “maintain, as much as possible, the article 8 ECHR protections that were contained in the supportive care elements of the scheme, but in such a way as to minimise the demand upon services”.

These amendments would be aimed primarily at ensuring that there was proper consideration, in advance of the decision being made, of the necessity of removing individuals from their own home and placing them in institutional care in the name of their best interests, the statement said.

“The failures of public bodies in this regard have been evident in high-profile cases such as London Borough of Hillingdon v Neary and Essex County Council v RF. The amendments would also aim at giving greater priority to the person’s wishes and feelings when a best interests decision is being made, and qualifying the immunity from legal action in respect of best interests decisions under section 5 of the Mental Capacity Act so as to provide additional procedural safeguards in respect of certain key decisions by public authorities.”

The Law Commission said it was also considering whether a defined group of people should receive additional independent oversight of the deprivation of their liberty, which would be undertaken by an Approved Mental Capacity Professional.

“Owing to the vast number of people now considered to be deprived of their liberty following Cheshire West, it would not be proportionate or affordable to provide such oversight to all those caught by article 5 of the ECHR,” it said.

The Law Commission is still working to develop the precise criteria that would operate to identify this group. However, it said it envisaged that this group would consist of those who were subject to greater infringement of their rights, including, in particular, their rights to private and family life under article 8 of the ECHR.

“In these cases, the commissioning body would be expected to refer any such proposal to an Approved Mental Capacity Professional, accompanied by the relevant assessments (such as the capacity assessment) and the medical evidence required by article 5 of the ECHR. The role of the Approved Mental Capacity Professional would be to agree or not agree to the proposed deprivation of liberty. Their role would not extend to ongoing reviews and the monitoring of cases,” the statement said.

The Law Commission suggested that, in the light of its revised approach, it did not consider that there was the same necessity to establish a bespoke general hospital scheme.

“We consider that our new system is sufficiently clear and straightforward to apply in any setting where a deprivation of liberty for the purposes of article 5 of the ECHR may occur, including hospitals, care homes, supported living and shared lives accommodation, and domestic and private settings,” it said.

The Law Commission noted how the interface between the DoLS and the Mental Health Act had generated significant debate, and said that consultation had confirmed its view that the new scheme should not attempt to maintain parallel legal regimes for detaining people for mental health assessment and treatment in psychiatric and other hospitals.

“Our scheme will therefore not be used to authorise deprivation of liberty in such cases. But we are persuaded that there should be no additional mechanism inserted into the Mental Health Act to cater for compliant incapacitated patients,” it said.

“The underlying policy aim of the provisional proposal can, instead, be achieved by providing that, if such patients are to be admitted to hospital (general or psychiatric) for purposes of assessment and treatment for mental disorder, their admission should be on the basis of the existing powers of the Mental Health Act.”

The Law Commission also concluded that the Coroners and Justice Act 2009 should be amended to remove its 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 interim statement said.

The coroner would have the power to conduct an inquest in an appropriate case but would not be obliged to do so, it added.

The Law Commission said a provisional proposal that the First-tier Tribunal should review cases under its new scheme, thereby replacing the role of the Court of Protection, had been supported by a significant number of consultees.

“We were told that the advantages of a tribunal system included its accessibility, informality and speedy decision-making. But others pointed to the existing levels of knowledge and expertise in the Court of Protection and the difficulties of demarcation or overlap with the remainder of the Mental Capacity Act if a tribunal jurisdiction was introduced,” it added.

The Law Commission said it had not yet reached a final decision on this and would be considering its position further over the coming months.

The statement ended by saying that the issue that had provoked most debate at consultation was the nomenclature associated with the DoLS.

“Most consultees felt that the term ‘deprivation of liberty safeguards’ was at best unhelpful and, at worst, meant that people were being denied access to legal rights. Some consultees were similarly critical of our proposed new terminology, including the label ‘protective care’. A number of consultees suggested the name ‘liberty safeguards’, whilst the next favourite was ‘capacity safeguards’. However, there was no consensus on the terminology that should be adopted," the Law Commission noted.

It is therefore inviting further views (by 23 June 2016) on the name that should be given to the new scheme. Suggestions should be sent to This email address is being protected from spambots. You need JavaScript enabled to view it..

The Law Commission still expects to publish a final report with its recommendations and a draft Bill by the end of 2016.