The complexity of the law relating to people of diminished mental capacity has long been a bone of contention and, with an ageing population, the courts are being increasingly tied up with mental capacity issues.

One of the most problematic areas is that of the deprivation of liberty of a person who needs to have care provided in a hospital or care home. Deprivation of liberty is never undertaken lightly and a regime called the Deprivation of Liberty Safeguards (DoLS) exists which requires a deprivation of liberty to be authorised by the Court of Protection.

The Law Commission has recently published its interim statement on the DoLS system, which has been widely criticised as being overly complex and excessively bureaucratic and which was described by the Select Committee of the House of Lords as being unfit for purpose. In addition, far more applications under DoLS have been necessary than was anticipated.

The statement finds the DoLS system to be deeply flawed and proposals are to be brought forward for its replacement by a new system, called ‘protective care’. It is expected that a final report together with a draft Bill to bring about the necessary reforms will be published in December 2016.


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