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Liberty Protection Safeguards: Reform of the Deprivation of Liberty Safeguards

The Government is asking for written submissions to the Joint Committee on Human Right’s inquiry on the Deprivation of Liberty Safeguards. However, you only have until Friday 2nd March 2018 to submit your responses.

Submissions should be no more than 1,500 words and they are particularly interested to hear evidence from interested parties on:

  • Whether the Law Commission’s proposals for Liberty Protection Safeguards strike the correct balance between adequate protection for human rights with the need for a scheme which is less bureaucratic and onerous than the Deprivation of Liberty Safeguards
  • Whether the Government should proceed to implement the proposals for Liberty Protection Safeguards as a matter of urgency
  • Whether a definition of deprivation of liberty for care and treatment should be debated by Parliament and set out in statute

https://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/news-parliament-2017/right-freedom-safety-tor-17-19/

The Deprivation of Liberty Safeguards (DoLS), set out in the Mental Capacity Act 2005 (MCA), safeguards against arbitrary detention for people who are deemed to lack capacity to consent to their care or treatment.

The DoLS aim to ensure that people are only deprived of their liberty when it is in their best interests and there is no other less restrictive way to provide necessary care and treatment.

In 2014 the Supreme Court decision in the case of Cheshire West significantly widened the definition of a deprivation of liberty. The judgment has resulted in a tenfold increase in the number of DoLS applications being made in recent years. Local Authorities have struggled to cope with the resource implications of the judgment and a very large backlog of cases has built up.

Immediately prior to the Cheshire West judgment, the House of Lords Select Committee on the Mental Capacity Act had concluded ‘… far from [DoLS] being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned.’ They have also been widely criticised for being overly complex and bureaucratic.

In response to this situation the Government asked to Law Commission to look at ways to reform the legislation in this area.

In March 2017, the Commission published its final report Mental Capacity and Deprivation of Liberty which called for DoLS to be replaced ‘as a matter of pressing urgency’ with a new scheme called the Liberty Protection Safeguards (LPS).

On 30th October 2017 in a Written Ministerial Statement, the Health Minister issued an interim response to the Law Commission’s report, undertaking to engage in a further period of consultation and promising a final response in spring 2018.