The Law Commission Publishes its Final Report on Mental Capacity and Deprivation of Liberty
April 27, 2017
BY British Columbia Law Institute
On March 13 2017, the Law Commission of England and Wales published its final report on Mental Capacity and Deprivation of Liberty. While the Commission is still awaiting response from government, the report culminates a three-year process which included one of the largest consultation efforts the Commission has undertaken. The project was meant to determine what reforms were needed to address deficiencies in the Mental Capacity Act and the Deprivation of Liberty Safeguards (DoLS).
The DoLS’s purpose is to protect people who lack mental capacity and need to be deprived of their liberty to receive health care or home care. A 2014 House of Lords Select Committee report concluded that the DoLS were “not fit for purpose”. Additionally, a 2014 Supreme Court decision had considerably expanded the meaning of “deprivation of liberty,” which in turn increased the number of people that were protected by the DoLS, creating significant backlogs in the system.
After extensive consultations, the Law Commission concluded that the current system was overly bureaucratic and confusing. Clinicians were adamant that the DoLS were too technical and provided no tangible benefits, while the patients’ families found it distressing and confusing.
The Law Commission recommends repealing and replacing the DoLS. Their final report includes draft legislation to implement a new scheme called Liberty Protection Safeguards. The Liberty Protection Safeguards maintain a lot of the same features as the DoLS, but remove certain procedures that were burdensome and actively detrimental. The proposed changes include:
- Removing unnecessary repetitive processes
- Replacing urgent authorizations of deprivations of liberty with temporary authorizations
- Moving from a system that simply authorizes a deprivation of liberty to a model that authorizes arrangements for a person’s care or treatment insofar as the arrangements give rise to a deprivation of liberty
- Several changes to clarify the criteria for deprivation of liberty decisions, including express provisions for cases of fluctuating capacity
- Coverage of 16 and 17-year-old minors without requiring an application to the Court of Protection
For a summary of the final report click here.
To read the full report click here.
The CCEL is currently working on the Health Care Consent, Aging and Dementia project, which addresses some similar issues from a Canadian perspective.