The government has responded to the Law Commission’s 2017 review of the Deprivation of Liberty Safeguards (DoLS). DoLS were introduced in England and Wales as an amendment to the Mental Capacity Act in 2007. They were intended to provide legal safeguards for individuals who are deprived of their liberty and do not have the capacity to consent. The current DoLS process applies to over 18 year olds who are being deprived of their liberty in care homes and hospital settings.
The House of Lords Select Committee on the Mental Capacity Act stated that DoLS was ‘not fit for purpose’ and the Law Commission were asked by government to review the system and to make recommendations to improve it. The Law Commission recommended that DoLS be overhauled and replaced by the Liberty Protection Safeguards (LPS).
Alongside the recommendation to replace the DoLS system with the LPS, the Law Commission made 47 other recommendations, to which the government has provisionally responded.
The government agreed that the DoLS need to be overhauled, and that the Liberty Protection Safeguards are an appropriate replacement. They have agreed in principle to 42 of the recommendations, rejected one, and identified that the remaining 4 will be considered as part of the Mental Health Act review.
Deprivation of Liberty for 16 and 17 Year Olds
A key challenge of DoLS is that it does not apply to 16 or 17 year olds, when the Mental Capacity Act 2005 applies to all individuals over the age of 16. This has left a complex legal situation for young people aged 16 and 17 and their families, and there have been a number of case law judgements which have attempted to clarify the situation. The government have agreed in principle that the LPS should apply from the age of 16, whilst recognising that any changes would need to take account of wider rights, such as parental responsibility.
Comment from CDC Director Dame Christine Lenehan
“We welcome the response from the government agreeing to the majority of the recommendations from the Law Commission. It is vital that we get this legislation right for young people, to keep them safe and to reduce the burden on families, local authorities and community settings.”