The Law Commission have published a report on the Mental
Capacity Act 2005 and the Deprivation of Liberty Safeguards along
with a draft Bill. The report suggests that the Deprivation of
Liberty Safeguards (DoLS) are not fit for purpose, and need to be
replaced as quickly as possible to make sure the Mental Capacity
Act works effectively.
For more information about the Mental Capacity Act 2005 please
download our factsheet here.
What does the report say?
The report accepts that the DoLS have been criticised widely,
for being too technical and legalistic. Also, the DoLS may not be
protecting vulnerable people, particularly young people or people
who may have their freedom limited somewhere other than a hospital
or a care home. There have been a large number of cases under DoLS
in recent years, which has taken up a huge amount of resources and
meant that many people wait a long time for an official decision.
What could a new process look like?
The report recommends that the DoLS be replaced by Liberty
Protection Safeguards (LPS). The LPS would apply to a wider range
settings, such as supported living and shared housing.
When someone may lack capacity to make a decision about their
life and might have their liberty restricted, the LPS would mean
that a responsible body (such as a Local Authority) would have to
arrange for assessments to check the person's mental capacity,
their health, and that the care option which has been suggested is
necessary and proportionate.
In addition the LPS would extend to cover 16 and 17 year