DoLS latest – Joint Committee on Human Rights urges action

In a report published today examining the Law Commission's proposals to reform the Deprivation of Liberty Safeguards scheme, the Joint Committee on…

Executive summary

In a report published today examining the Law Commission's proposals to reform the Deprivation of Liberty Safeguards scheme, the Joint Committee on Human Rights said the current system is broken and that urgent action is needed.

In detail

It is now well in excess of 15 months since the Law Commission published its final report into the Deprivation of Liberty Safeguards (DoLS) which concluded that the existing system was wholly unfit for purpose and recommended its replacement with new ‘Liberty Protection Safeguards’. Read our update on the Law Commission’s report.

Parliament’s Joint Committee on Human Rights – consisting of six members of the House of Commons and six from the House of Lords – has now published a detailed report examining those Law Commission proposals.

The report notes that 70% of the almost 220,000 applications for DoLS in 2016-17 were not authorised within the required timeframe with the result that many people were and are currently unlawfully deprived of their liberty, in breach of Article 5 of the European Convention on Human Rights. It goes on to consider the decision of the Supreme Court in the Cheshire West case which set out the “acid test” for deprivation of liberty as whether a person is under continuous supervision and control and not free to leave regardless of whether they are content or compliant. Extending the existing scheme to all those caught by this definition could cost £2 billion a year the report states. The Committee then calls for Parliament to consider the definition of deprivation of liberty in the context of mental capacity law, ensuring that the safeguards of Article 5 apply to those who truly need them. Unless this fundamental issue of definition is addressed, the report concludes, there is a risk that the Law Commission's proposals may become as impractical as the current scheme.

Conclusions and implications

The Committee, chaired by Harriet Harman MP, recommends that legislation is brought forward to implement the Law Commission’s Liberty Protection Safeguards which would authorise the specific arrangements that give rise to the deprivation of liberty, but in a lighter touch way than the current scheme. It also supports the proposals to extend the protection into domestic settings provided that the definition of “deprivation of liberty” is established more clearly, as discussed above.

The process around reform and replacement of the DoLS has now been ongoing for a number of years. Whilst there is now almost universal agreement as to the need for reform, the timescale for so doing is uncertain, particularly for a Government which has only the smallest of working majorities coupled with the thorny process which is Brexit to deal with. Any concrete action to deal with the actual implementation of the reforms to the DoLS seems unlikely to happen any time soon.

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