New laws for deprivation of liberty in supported living to be drafted by 2017

The Law Commission will draft a new legal framework to allow for best interests deprivation of liberty in settings other than hospitals and care homes by 2017.

The government has asked the commission to draft a new framework for deprivation of liberty in settings not covered by the Deprivation of Liberty Safeguards (Dols), notably supported living. The Dols only apply to hospitals and care home settings. Applications for deprivation of liberty in supported living must currently be made directly to the Court of Protection.

The Law Commission will start its review this summer. A draft bill, report and recommendations to government will be published in summer 2017, it was announced this week.

Pressure to reform the process for authorising deprivation of liberty in settings not covered by the Dols has intensified as a result of a Supreme Court judgement – in the cases of P v Cheshire West and P&Q v Surrey – in March that effectively lowered the threshold for deprivation of liberty in care. A survey of 106 councils found local authorities are estimating deprivation of liberty cases will rise ten-fold this year due to the ruling, with referrals to the Court of Protection to authorise deprivation of liberty in settings not subject to Dols expected to rise from 134 in 2013-14 to 18,633 in 2014-15.

In March, a House of Lords committee report called on the government to scrap the “overly complex” Dols and replace them with a framework that extended to supported living. In its response, the government rejected that call but acknowledged a “pressing” need to improve the process for deprivation of liberty in supported living and said it would ask the Law Commission to review the process.

The government response acknowledged that the strain on the Court of Protection was likely to increase as a result of the Supreme Court ruling but said the system of court authorisations would continue for “the foreseeable future”. The Court of Protection is currently considering how it can streamline its process for handling deprivation of liberty applications while remaining compliant with European human rights law.