Law Commission Report - Mental Capacity and Deprivation of Liberty Safeguards

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 olds.