Local authorities, already under increasing pressure to deal with a surge in deprivation of liberty (DoL) applications, could face increased responsibilities under Law Commission proposals to reform the law governing mental capacity.
The commission was asked by the government to review DoL safeguards (DoLS) after local authorities experienced a tenfold increase in applications in England and a 16-fold increase in Wales following the Supreme Court’s Cheshire West judgment.
The ruling held that far greater numbers of people fell to be dealt with under the DoLS system than had previously been thought.
The commission is expected to unveil its final report and draft legislation in December. Publishing an interim statement today, the commission says it proposes to recommend a ‘more straightforward, streamlined and flexible scheme’.
The commission says responsibility for establishing the case for deprivation of liberty will shift on to the commissioning body, such as the NHS or local authority, that is arranging the relevant care or treatment, and away from the care provider.
‘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 commission says.
‘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.’
Those deprived of liberty, as well as others such as family members and advocates, would be given rights to seek reviews and bring legal proceedings. There would also be ‘comprehensive’ rights to advocacy.
Describing its four-month consultation exercise as one of the ‘most extensive’ it had undertaken, the commission received 583 written responses, including 263 from local authorities and 60 from legal bodies such as law firms.
The commission said it had not yet reached a final decision on whether the first-tier tribunal should review cases under its new scheme, thereby replacing the Court of Protection.
‘This proposal was supported by a significant number of consultees,’ the commission says. ‘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.’
The commission says the issue that provoked most debate was the ‘nomenclature’ associated with DoLS, but that there was ‘no consensus on the terminology that should be adopted’.