Law Commission The Department of Health has asked the Law Commission to extend its review of mental capacity and detention to consider the Deprivation of Liberty Safeguards (DoLS) in their entirety.

In August, at the Department of Health’s request, the Law Commission launched a 3-year project to consider how deprivation of liberty should be authorised and supervised in settings other than hospitals and care homes. 

The Law Commission’s initial brief for the project was to draft a new framework for deprivation of liberty outside of the settings covered by the current DoLS. The DoLS cover hospitals and care home settings but not supported living, for example. 

The DoLS aim to ensure people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom. The safeguards should ensure that a care home or hospital only deprives someone of their liberty in a safe and correct way, and that this is only done when it is in the best interests of the person and there is no other way to look after them. 

But the DoLS have been criticised since they were brought in in 2007. Criticisms include being overly complex and bureaucratic, and that many care staff don’t understand them fully even now.

This criticism intensified in March this year when a House of Lords committee report called the DoLS “not fit for purpose” and said the government should scrap them. 

Also in March, two Supreme Court judgements - P v Cheshire West and Chester Council and P and Q v Surrey County Council – heaped further pressure on the DoLS, by lowering the threshold for what constituted a deprivation of liberty in care.

Since then, the number of deprivation of liberty cases has risen, with councils expecting them to rise 10-fold this year. The Department of Health has accepted that there are difficulties with DoLS and the Law Commission’s project is one of number of measures announced designed to improve the way the safeguards work.

Nicholas Paines QC, the lead Commissioner for the project, said "The Department's decision is very welcome. Our timetable for the project remains unaffected. We expect to publish a consultation paper in the summer 2015 and our final report and draft legislation in summer 2017."