The review will cover the Deprivation of Liberty Safeguards (DoLS) under the Mental Capacity Act 2005 (MCA 2005) and how detentions should be authorised in community settings.

The DoLS ensure a professional assessment takes place of whether the person lacks capacity to make decisions about their care and treatment and whether it is in their best interests to be detained. The DoLS apply to people in hospitals and care homes, but not to people living in their own home or in supported living arrangements.

Criticisms: not fit for purpose?

The DoLS have been subject to heavy criticism ever since their introduction. The Care Quality Commission concluded that health and social care workers do not understand them fully, and there is confusion about the differences between the powers of the Mental Health Act 1983 (Care Quality Commission, Deprivation of Liberty Safeguards 2012/13 (2014)).

The courts have also been critical of the actions or mindset of some local authorities in DoLS cases. In G v E [2010] EWHC 621 (Fam) a council was admonished for its failure to initiate the DoLS process or an application to the court when there was evidence of a deprivation of liberty. In Hillingdon Council v Neary [2011] EWHC 1377 (COP) the court warned the council that it must work in genuine partnership with families, and the DoLS should not be used by a council as a means of getting its own way on the question of where a disabled person should live.

This culminated in a critical 2014 report by a House of Lords select committee which described the DoLS as “not fit for purpose”. It recommended that the DoLS be replaced with legislation that is in keeping with the language and ethos of the MCA 2005 as a whole, and the new system should apply to supported living arrangements (House of Lords Select Committee on the MCA 2005, Mental Capacity Act 2005: Post Legislative Scrutiny (2014) HL Paper 139).

Towards a new detention system: areas under review

There are many important issues that will need to be addressed, including the process for authorising a deprivation of liberty (including emergency processes) and the interface between the new system and the Mental Health Act 1983 (MHA 1983). It will also be important to consider rights to review and appeal. Under the DoLS, the local authority must carry out a review of a standard authorisation, and there is a right to appeal to the Court of Protection in certain circumstances. By way of contrast, the MHA 1983 right to appeal is to the First-tier Tribunal.

The role of Art 8 will also be considered. Once detained, DoLS provides little oversight on Art 8 restrictions – in contrast to the MHA 1983. These restrictions might include the use of seclusion, restraint and restrictions on the person’s contact with others.

A key feature of the existing systems is the provision of persons to support the detained person. For instance, the DoLS requires a representative to be appointed whose role is to maintain contact with the person and has a right to require a review to be held and appeal to the Court of Protection on the person’s behalf. Both the person who is deprived of liberty and their representative have a right to access an Independent Mental Capacity Advocate.

The review will also need to take account of what appears to be ongoing uncertainty over the meaning of deprivation of liberty. A recent judgment by Mr Justice Mostyn held that a person’s physical and mental ability to leave is relevant to determining whether they are deprived of their liberty (Rochdale Council v KW [2014] EWCOP 45). This appears to be at odds with the Supreme Court decision in P v Cheshire West [2014] UKSC 19.

A consultation paper will be published this summer, followed by a four-month public consultation. The final report and draft Bill will be published in summer 2017. The Law Commission wants to ensure a wide-ranging debate and would welcome the active involvement of Counsel readers. Please email your views to:

Contributors Tim Spencer-Lane and Horatio Waller
Law Commission of England and Wales