The Law Commission has published its interim statement on its proposed reform of the Deprivation of Liberty Safeguards. After an extensive consultation generating 583 written responses the Commission's preliminary views are:
- There is a compelling case for legislation.
- The new scheme the Commission intends to put forward will be flexible and will shift the responsibility for establishing the deprivation of liberty to the commissioner rather than the provider;
- All those deprived of their liberty will benefit from safeguards to include advocacy and the right to challenge the deprivation of liberty (the Commission had originally suggested an automatic review to the court periodically as is the case for those detained under the Mental Health Act- MHA).
Amendments to the MCA should ensure proper consideration is given to the necessity for moving those lacking capacity from their homes.
No amendments to the MHA,
The new scheme to be removed from the Coroners and Justice Act 2009.
The commission is still undecided as to whether appeals against the new scheme should go to the Tribunal or the Court of Protection.
Suggestions as to a name for the new scheme are invited.
In brief the Commission currently concludes: There is a compelling case for replacing the DOLS through legislation. The system is currently unsustainable and DOLS has failed to deliver improved outcomes for those lacking capacity and their families.