Legal Update: The Government responds to Law Commission proposals for reform of the Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DoLS) were introduced in England and Wales as an amendment to the Mental Capacity Act 2005 (MCA) and came into force in April 2009.  DoLS provide legal safeguards for individuals who are deprived of their liberty and lack capacity to consent.

When the House of Lords undertook post legislative scrutiny of the MCA in 2014 it found that DoLS were ‘not fit for purpose.’  This coincided with the Supreme Court decision in Cheshire West (setting out the ‘acid test’ for a deprivation of liberty) which brought about an exponential rise in DoLS applications. In response to this the government asked the Law Commission to review DoLS and produce proposals for their reform. After a lengthy public consultation period the Law Commission published a report in March 2017 setting out its recommendations for a replacement scheme called the Liberty Protection Guidelines (see our legal update dated 27/03/17).

The government has now published a formal response to the Law Commission’s report accepting the majority of the Law Commission’s recommendations. No timescale is given for the introduction of legislation despite the government acknowledging that the current DoLS scheme needs to be replaced ‘as a matter of pressing urgency’. The government response concludes by stating ‘we will legislate on this issue in due course. However, before the introduction of any new system, we will need to consider carefully the detail of these proposals and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.’

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk