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The Law Commission’s Mental Incapacity and Detention Project has been extended

The project

In the Summer edition of our Court of Protection, Health & Social Care Law briefing we gave a very brief summary of where we are on the issue of Deprivation of Liberty post Cheshire West and post the House of Lords Report into the Mental Capacity Act. We told you that the Law Commission had announced that it would be reviewing the law regarding deprivation of liberty. The scope of the Law Commission project was originally limited to reviewing the law regulating deprivation of liberty in community settings. This was disappointing as we believed it was the legislation relating to deprivations of liberty in care homes and hospitals (the Deprivation of Liberty Safeguards or DoLS) that really needed to be reviewed. However, yesterday we learnt (thanks again to Alex Ruck Keene at 39 Essex Street) that the remit has now been extended to include the DoLS regime currently provided for in the complex Schedule A1 to the Mental Capacity Act 2005 which regulates deprivation of liberty in hospital and care home settings.

The Department of Health asked for DoLS to be additionally considered because they want to ensure that the Mental Capacity Act is always used to protect and empower people receiving care and support.

Why is a review needed?

The DoLS provisions have been criticised since they were introduced for being overly complex and excessively bureaucratic. Staff who have to apply the Safeguards have said that they do not understand them and that there is confusion over the differences between the powers of the Mental Health Act 1983 and DoLS.

In March 2014 the House of Lords select committee conducting a post-legislative scrutiny of the Mental Capacity Act found that DoLS were not “fit for purpose” and called for them to be replaced.

The Law Commission is now considering how deprivation of liberty should be authorised and supervised in hospitals, care homes and community settings, where it is possible that Article 5 rights would otherwise be infringed.

This includes considering the legislation underpinning DoLS in its entirety.

The extension

Although the project has been extended in its remit, there has been no time extension. A consultation paper is still expected to be published in Summer 2015 and a final report and draft Bill in Summer 2017.

There is a lot of work to still be done, but the extension of the mandate to incorporate investigation into deprivations of liberty in all settings can only be positive. We can hope that this confusing and non user friendly piece of legislation will be improved, simplified and streamlined. We also hope that the Safeguards (because that is what they are) will be better used, authorised, reviewed and supervised in the future so that if an incapacitated adult must be placed in circumstances that amount to a deprivation of his or her liberty, it is because that is the only way that their best interests can be served effectively.

The Law Commission remains undeterred by the Department of Health’s request; Nicholas Paines QC, the lead Commissioner for the project, said:

“The Department’s decision is very welcome. Our timetable for the project remains unaffected. We expect to publish a consultation paper in the summer 2015 and our final report and draft legislation in summer 2017.”

For a direct link to the project’s status click here.