Law Commission publishes update on deprivation of liberty consultation

Yesterday, the Law Commission published an interim statement providing an update about its consultation on deprivation of liberty (DoL). This statement follows a public consultation that was run in 2015 looking at the current scheme dealing with DoL and setting out suggestions for a replacement.

This interim statement clarifies that significant changes will follow. It concludes that legislative change is the ‘only satisfactory solution’.

The need for a consultation addressing these important issues arose in 2014 following a House of Lords Committee concluding that the current Deprivation of Liberty Safeguards (DoLS) scheme is not fit for purpose. Further, following an important Supreme Court judgment commonly referred to as Cheshire West[1], the circumstances when an individual may be deprived of his or her liberty has significantly widened. This has caused a huge increase in applications to authorise a DoL -the Law Commission interim statement reports a tenfold increase in England and a 16 fold increase in Wales. Understandably, due to the increase in numbers, there have been significant delays in processing these requests and the need for change has been recognised.

The interim statement concludes, amongst other things:

• There is a compelling case for replacing DoLS. DoLS is overly technical and legalistic and due to the increase in applications following Cheshire West, is unsustainable;
• Any new scheme must reduce administration and the costs burden on authorities;
• A more streamlined and flexible scheme is proposed, whilst ensuring that safeguards to secure the protection of those deprived of their liberty are in place, including protection under Article 8 ECHR[2];

The Commission is seeking further views on the terminology that should be adopted to replace DoLS. Anyone wanting to submit suggestions must do so by 23 June 2016.

The next stage will be the production of a final report and draft legislation, which are both due before the end of 2016. It will then be a matter for the Government to decide how to proceed.

Anna Moore, human rights solicitor at Leigh Day, commented “Whilst it remains to be seen what will be contained within the final report and draft legislation, this interim statement is clear that significant legislative change is needed.

It is clear the current system isn’t working.  In my experience those deprived of their liberty and their family members often find the current system impenetrable and do not know where to turn. Finding a system that lessens the administrative burden on the authorities whilst protecting the rights of vulnerable individuals is undoubtedly a difficult task but an important one and I await the final report with interest”.