Consultation 

This was one of the Law Commission's most extensive public consultations (583 written responses).

Key points from the consultation included:

  • Positive feedback about:
    • the need to replace the current system
    • streamlining the authorisation process including removing the need for 6 separate assessments in each case
  • Concerns about:
    • ifferent tiers/levels of safeguards could be cumbersome and overly complex
    • whether any system based on the Cheshire West 'acid test' definition of a deprivation of liberty is sustainable
    • financial implications of the proposed new scheme

 ​Interim conclusions 

The 'headline' interim conclusions reached by the Law Commission are as follows:

  • there is a compelling case for replacing the current DoLS scheme
  • the new scheme must reduce the administrative burden and associated costs of the current system
  • it is proposed that responsibility for establishing the case for depriving someone of their liberty will shift from the care provider to the commissioning body (i.e. local authority or CCG).  This is a significant departure from the current DoLS scheme
  • a more straightforward scheme for authorising deprivation of liberty is proposed, including:
    • a simplified process for authorising deprivations of liberty – e.g. it will be open to the commissioning body to make use of existing care plans and to rely on existing assessments where appropriate
    • evidence to establish the case for a deprivation of liberty 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, although it is unclear exactly how it is envisaged this will work in practice or what the future role of Best Interests Assessors will be
    • the proposed scheme will apply to all settings – hospitals, care homes, supported living and shared lives accommodation, domestic and private settings
  • consideration is being given to whether a (yet to be) defined group of people who are subject to greater infringements of their rights - e.g. right to private/family life -  should receive additional independent oversight of their deprivation of liberty from an Approved Mental Capacity Professional
  • the scheme now being proposed will focus solely on people who are deprived of their liberty – i.e. the idea of a 'supportive care scheme' has been dropped. Instead, there will be some amendments to the Mental Capacity Act – e.g. to ensure proper consideration of whether it is necessary to remove a person from their own home and greater emphasis on the person's wishes and feelings when making decisions in their best interests
  • the proposal for a separate hospital scheme has also been dropped
  • there will be no new tier of detention under the Mental Health Act for compliant incapacitated hospital patients
  • there will be no legal requirement to conduct a Coroner's Inquest for people subject to the new scheme
  • those deprived of their liberty (and others such as family members and advocates) will have a right to challenge the deprivation of liberty but no final decision has been reached about whether the First-Tier Tribunal (rather than the Court of Protection) will review cases under the new scheme

What next? 

The Law Commission is seeking suggestions by 23 June 2016 on a suitable name for the new scheme. Suggestions for the new name should be sent to  Olivia.Bird@lawcommission.gsi.gov.uk.

The Law Commission expects to publish a final report with its recommendations and a draft Bill in December 2016.