In a report published today examining the Law
Commission's proposals to reform the Deprivation of
Liberty Safeguards scheme, the Joint Committee on Human
Rights concludes that the current system is broken and that
urgent action is needed.
The Committee, made up of MPs and Peers and chaired by
MP, recommends that
legislation is brought forward to implement the Law Commission’s
with Liberty Protection Safeguards (‘LPS’ ) which would
authorise the specific arrangements that give rise to the
deprivation of liberty, but in a lighter touch way than the
current scheme. It supports the proposals to extend the
protection into domestic settings provided that the definition of
“deprivation of liberty” is established more clearly.
Different laws and rights apply to people depending on
whether their disorder is mental or physical. In the long term,
this must also be solved.
The report emphasises the vital need to have mechanisms to
ensure that arrangements made for people who lack capacity are in
their best interests. It is also important that resources are, as
far as possible, directed to care rather than to legal and
bureaucratic processes.
The Deprivation of Liberty Safeguards (DoLS) scheme
safeguards against the arbitrary deprivation of liberty of
people who lack capacity to consent to their care or
treatment, such as people living with dementia, people with
autism and people with learning disabilities, providing legal
authorisation for depriving a person of their liberty in a care
home or hospital setting. However, there is widespread
consensus that the scheme is broken.
70 per cent of the almost 220,000 applications for DoLS in
2016 -17 were not authorised within the required time frame.
Consequently, many people are currently unlawfully deprived
of their liberty, in breach of Article 5 ECHR. As many
as 100,000 people are currently affected: the system is so broken
those responsible for them have to consider how best to break the
law.
The decision of the Supreme Court in Cheshire West
was that the “acid test” for deprivation of liberty is
whether a person is under continuous supervision and control and
not free to leave regardless of whether they are content or
compliant. Extending the existing scheme to all those caught by
this definition could cost £2bn a year.
The Committee calls for Parliament to consider
the definition of deprivation of liberty in the context
of mental capacity law, ensuring it the safeguards of
Article 5 apply to those who truly need them.
Unless the fundamental issue of definition is
addressed, there is a risk that the Law
Commission's proposals may become as impractical as
the current scheme.
