The Law Commission is undertaking a project on mental capacity and detention with a view to publishing a report with recommendations for reform and a draft Bill in summer 2017.
The below statement was released on the Law Commission website.
The Mental Capacity Act 2005 provides the framework for assessing whether people have the necessary capacity to make certain decisions, and where they do not, for others to make those decisions in their best interests. In 2004, a case before the European Court of Human Rights established that it was possible for decisions taken in a person’s best interests about the provision of residential and social services were capable of amounting to a deprivation of liberty under Art 5 of the European Convention on Human Rights. The UK was found to be in breach of the Article, because in such circumstances the law in England and Wales did not provide for an adequate system of authorisation and review of the deprivation of liberty.
In 2007, in reaction to the finding, the deprivation of liberty safeguards (DOLS) were introduced into the Mental Capacity Act 2005 by the Mental Health Act 2007. They were introduced in order to plug the gap identified in the case, and to ensure that such situations are properly regulated in line with the person’s human rights. DOLS applies only to deprivations of liberty that take place in hospitals and care homes. If a person’s right to liberty is compromised in other settings, his or her deprivation of liberty has to be authorised and supervised by the Court of Protection.
The DOLS provisions have been criticised since they were introduced for being overly complex and excessively bureaucratic. It is said that staff often do not understand them and that there is confusion over the differences between the powers of the Mental Health Act 1983 and DOLS.
In March 2014 a House of Lords select committee conducting a post-legislative scrutiny of the Mental Capacity Act
found that DOLS were not 'fit for purpose' and called for them to be replaced. The committee also recommended that the new system should extend to cover people in supported living arrangements, not just hospitals and care homes. Shortly afterwards, the Supreme Court found that a person will be deprived of their liberty in more situations than had previously been thought to be the case
The Department of Health has accepted that there are difficulties with DOLS and has announced various measures designed to improve the way the safeguards operate.
Our project considers how deprivation of liberty should be authorised and supervised in settings other than hospitals and care homes, where it is possible that Art 5 rights would otherwise be infringed. In addition to considering these settings, the project will also assess the implications of this work for DOLS to ensure that any learning which may be relevant is shared.