In the Government’s response to the Select Committee’s post-legislative scrutiny report, available here, a significant element related to the provisions of Schedule A1, which were heavily criticised in that report. The following are our understanding from the Government’s response of the concrete steps that will be taken:

Short to medium term

  • ADASS (the Association of Directors of Adult Social Services) will lead a time‐limited task group to assist local authorities and work through the implications of the Supreme Court judgment. The task group will contain key partners (including CQC, NHS England, DH, and representation from local authority solicitors) and will aim to publish an initial read‐out of its findings by the end of August 2014. Its work will be informed by input from the care provider sector. To this end, the Care Provider Alliance has agreed to lead an event where care providers can put forward and discuss their concerns following on from the Supreme Court judgment;
  • The Government will commission a project to consider the value of each of the DOLS forms and to redraft them (or redesign from scratch) with a view to creating a new set that better balances the  need to robustly protect and enhance an individual’s rights with the need for a more streamlined and less burdensome system. The project will complete by the end of November 2014;
  • The Government will commission up to‐date guidance on deprivation of liberty case law – to be published by the end of 2014;
  • The revised Code of Practice to the MHA 1983 will include a specific chapter on the interface between deprivation of liberty under the MCA (including DoLS) and the Mental Health Act 1983 and the determination of which regime should be used in particular circumstances. The draft revised Code of Practice will go out to public consultation this summer;

Long term

  • The Government has asked the Law Commission to undertake a review as part of the Commission's forthcoming work programme (to be agreed shortly with the Lord Chancellor) that will consult on and then potentially draft a new legal framework to allow for the authorisation of a best interests deprivation of liberty in supported living arrangements. We shall agree precise terms of reference with the Law Commission in due course but the new system shall be rooted firmly in the MCA. We are clear that this work must include wide stakeholder consultation and careful consideration of the many issues at play. “This work will not complete for a few years.”
  • As part of this work, the Government will ask the Law Commission, to consider “the learning points” that can be applied to DoLS and any improvements that can be made in light of its work (and indeed any changes that will need to be made to DoLS to take account of the new supported living provisions). “Any changes to DoLS would seek to address those recommendations made by the House of Lords: namely to ensure the provisions are in keeping with the ethos of the Mental Capacity Act (any improved DoLS would continue to be part of the MCA), that they are clearly drafted and easily understood, that consideration is taken as to how to strengthen the role of the Relevant Person’s Representative and that the effective oversight of the supervisory body be ensured.”

Not on the agenda

The Government has made it clear that it does not propose to take forward:

  • Any legislative proposal to close the new Bournewood Gap identified by the House of Lords following on the decision in Dr A. The Government does not consider that there is a new Gap. “If necessary, the inherent jurisdiction of the High Court could provide any further authorisation that may be required to deprive a patient detained under the Mental Health Act 1983 of their liberty for medical treatment unrelated to the patient's mental disorder. Given the small number of cases in which this will arise, we do not propose to introduce legislative amendments.
  • Any major work in relation to the DoLS Code of Practice until the Law Commission has reported its finding. However, if “following the work of the ADASS‐led task group, minor amendments to the Code would seem valuable, the Government will consult and take a decision on this through the DH‐led MCA Steering Group.”