It’s been quite a wait, but the Law Commission have published their consultation on the law of mental capacity and deprivation of liberty (DoLS).

We’ve got until 2nd November to respond; I’d love to hear the views of our members and we will be drawing them into our own response.  We need to make sure that our views are heard as our collective expertise is vital in making sure that it’s ‘right next time’! And we need to get it right; only by using this opportunity to tap into your expertise can we make sure there is a law that works for the protection and empowerment of the vulnerable individuals we support.

Ever since the DoLS were introduced they have been criticised for the amount of bureaucracy and the level of complexity involved. It is quite something to have relatively new legislation described as ‘not fit for purpose’ by a House of Lords Select Committee!  The final impetus for change came with the Cheshire West case in the Supreme Court that determined that far greater numbers of people needed to be dealt with under the DoLS system than had previously been thought.  On a day to day basis we are all very aware of the increased burdens on local authorities and health and social care practitioners administering the DoLS.  The Law Commission consultation paper concludes that the DoLS are ‘deeply flawed’.

The new proposals are for a new system, to be called ‘Protective Care’ which will have a focus upon providing appropriate care and better outcomes for people who lack mental capacity and helping their family and carers.  This will be a significant change for ARC members as the suggestion is that people who lack capacity and are living in care homes, supported living and shared lives accommodation will be provided with a set of safeguards intended to ensure that their accommodation and care and treatment are right for them. If a person accommodated in these settings requires some restrictive forms of care or treatment there would be additional safeguards. Authorisation would be much less bureaucratic and would come through an independent professional to be known as an Approved Mental Capacity Professional.

Please get involved in the consultation, it’s vital – but before we get too ahead of ourselves – the report with final recommendations and a draft bill outlining a new scheme will not be produced for ministers until the end of 2016.  In the meantime we have to work with the current safeguards, however unfit for purpose they have been determined to be. This remains to be a key area where you have told us you need support. Let us help.  We offer a one-day face to face delivered workshop covering the Mental Capacity Act and DoLS.  We can come to you and deliver in-house or you may wish to book on one of our courses starting in September.


Lisa Lenton
ARC England Director