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Law Commission lays out DoLS replacement in consultation

The Law Commission has unveiled its proposals for a framework to replace what it calls the “deeply flawed” Deprivation of Liberty Safeguards (DoLS). 

As part of its consultation, launched last week, it states that DoLS are poorly understood, fail to take sufficient account of a person’s article 8 rights and are incompatible with the ethos of the Mental Capacity Act. 

The DoLS have been criticised since they were introduced for being overly complex and excessively bureaucratic. In March 2014, a House of Lords Select Committee published a detailed report concluding that the DoLS were “not fit for purpose” and recommended that they be replaced. 

Tim Spencer-Lane, lead lawyer on the project, said: “DoLS is itself is a technical legal concept. Identifying when someone has been deprived of their liberty is not clear cut, and nursing staff and care workers tend to see the safeguards as a technical legal solution that does not necessarily benefit the person they are caring for in any tangible way.” 

At the heart of the Law Commission’s proposed new system is a two-tier framework for safeguarding the rights of people in care homes, supported living and other community social care placements. 

The Law Commission provisionally proposes that DoLS be replaced with a new system, to be called ‘Protective Care’. This system is not focused on authorising deprivations of liberty, but instead upon providing appropriate care and better outcomes for people who lack mental capacity and helping their family and carers. 

The paper proposes a scheme of ‘supportive care’ for people who require supported living in a setting other than their own homes. This would place a duty on local authorities to carry out an assessment of a person’s capacity to make decisions about their place of residence and ensure that a proper best interest assessment is carried out so that the benefits and dis-benefits of the various options for placement are explored before any decision is made. 

It is suggested that treatment of this kind be authorised with a minimum of bureaucracy by an independent professional to be known as an Approved Mental Capacity Professional. 

A separate scheme of safeguards will apply for those accommodated in hospital settings and palliative care, and be tailored to recognise that people’s accommodation in these settings is usually temporary. Safeguards will also apply for those people deprived of liberty in family homes or other domestic settings, and will recognise the special sensitivities that surround a person’s own home. 

The consultation is open until 2 November 2015, and the Commission expects to publish a final report with its recommendations and a draft Bill in 2016. 

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