Legislation will be brought forward to reform safeguards covering people detained under the Mental Capacity Act 2005, the government has announced, accepting several recommendations made by the Law Commission.
Deprivation of liberty safeguards (DoLS) are a set of protections for adults who lack the mental capacity to consent to being accommodated in a hospital or care home. The safeguards also enable the family or patient to challenge any such deprivation.
The commission, an independent body that reviews the laws of England and Wales, was asked by the government to examine the current system 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, which widened the number of vulnerable people considered to be deprived of their liberty. A House of Lords select committee had said the previous year that the safeguards were frequently not used when they should be, leaving individuals without the protections parliament intended.
The commission proposed 'liberty protection safeguards', which would ‘dispense with the current carousel-like process'. It estimated that the new safeguards would cost £236m a year, saving an annual £10m, which could be reinvested into the NHS and adult social care services.
This week, the government said it agreed in principle that the current system should be replaced 'as a matter of pressing urgency' and will legislate 'in due course'. The system will be known as Liberty Protection Safeguards. However, the government did not accept the commission's recommendation to consider reviewing mental capacity law relating to all children.
Law commissioner Nicholas Paines QC said: 'The deprivation of liberty safeguards are failing those they were set up to protect - some of the most vulnerable people in our society. Our liberty protection safeguards would protect people's basic human rights and help make sure that everyone gets the care they need. We're pleased the government agrees and we stand ready to work with them to implement these reforms as soon as possible.'
The Law Society said it welcomes streamlined safeguards to effectively protect some of the most vulnerable people in society. Christina Blacklaws, vice president, said: 'These should strengthen their ability to challenge measures that are overly restrictive or abusive and be straightforward for those responsible for the care of people who lack mental capacity - care homes, hospitals and local authorities - to comply with. The Liberty Protection Safeguards developed by the Law Commission provide a good foundation for a new framework and should be legislated as a matter of urgency.'