The Law Commission has announced that the reform of the Deprivation of Liberty Safeguards ("DOLS") is to be delayed.  

The Law Commission was invited to consider proposals for a statutory scheme which would apply to those in settings where DOLS cannot be used (for example, supported living, or those in their own homes) where their care arrangements deprive them of their liberty but are necessary in their best interests.  At present such arrangements have to be authorised by the Court of Protection (generally using the "streamlined" procedure set out in Practice Direction 10AA).   In September 2014 the project was extended to include reform of the DOLS process itself. 

On 17th June 2015, it was announced in parliament that the Law Commission’s programme would be accelerated,with legislation planned for 2016-ayear earlier than anticipated.

 On 7 July 2015 the Law Commission published its consultation paper “Mental Capacity and Deprivation of Liberty.”

 The key proposal was the replacement of DOLS with a new scheme called “protective care”, although the new scheme would apply to a wider range of individuals than DOLS.  This sub-divides into “supportive care”, and “restrictive care and treatment”.   The consultation was extensive.   In its interim position statement  the Commission reaffirmed the need for legislation.  One of the most significant proposals concern reforms to s4 MCA 2005, to give greater priority to the wishes and feelings of the person lacking capacity.  

The Law Commission said that their new proposals would establish a “more straightforward, streamlined and flexible scheme” where the responsibility to establish the case for deprivation of liberty will lie with the commissioning body.  That body would be required to arrange advocacy services and consult with family members and others, and would have to provide capacity evidence and medical evidence on the basis of the person’s mental health condition.  All persons would have the right to seeks reviews and bring legal challenges (a decision as to whether this should be the Court of Protection or a Tribunal is awaited) .  The  Commission said it was considering whether a group of people should have the benefit of additional safeguards.  

The Commission had hoped that its final paper and draft legislation would be published before the end of 2016.  Given the magnitude of the task it is perhaps not surprising that this proved too ambitious.  Practitioners will look forward to the Commission's draft legislation, and will hope that there will then be political will and parliamentary time to take it forward.