Government orders review of Deprivation of Liberty Safeguards

Move comes just three months after officials insisted that there was 'no fundamental flaw' in Dols scheme

Photo: John Curtis/Rex Features

The government has ordered a review of the Deprivation of Liberty Safeguards (Dols) less than three months after it told peers there was no need to rethink the legislation.

The Dols legislation, which applies to care homes and hospitals, will now be added to a Law Commission review of frameworks for authorising deprivation of liberty, the commission announced today. Deprivation of liberty cases in settings not covered by the Dols, notably supported living, require authorisation by the Court of Protection.

The Law Commission project had been restricted to drafting a new legal framework to cover deprivation of liberty in settings not covered by the Dols, notably supported living. But recent changes in case law, notably a Supreme Court ruling in March that has led to a surge in deprivation of liberty cases, and consultation with stakeholders prompted the Department of Health to request that the project be extended to cover the Dols, the commission said.

The project will publish a consultation paper next summer and a final report in 2017.

The move to extend the commission’s review to include the Dols marks a significant change in stance from the government.

In June, in its official response to a highly-critical House of Lords committee report that described the Dols as “not fit for purpose”, the government insisted there was no “fundamental flaw” in the Dols legislation. It rejected the peers’ call for the Dols to be scrapped and replaced with a system that was simpler and more grounded in the principles of the Mental Capacity Act.

Nicholas Paines QC, the Law Commission project lead, said “The department’s decision is very welcome.  Our timetable for the project remains unaffected.  We expect to publish a consultation paper in the summer 2015 and our final report and draft legislation in summer 2017.”

In response to the announcement, the Department of Health said: “We are committed to making sure that the Mental Capacity Act is used to protect and empower people receiving care and support. We are looking at the potential impact of the Supreme Court judgement on local authorities and will consider findings in the autumn.”

How the Supreme Court judgement affects your practice

The impact on practice of the Supreme Court’s ruling in March will be set out in a presentation at Community Care’s forthcoming conference on the Mental Capacity Act and Dols, on 24 October in London. Register now for a discounted place.

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