Mental Capacity and Deprivation of Liberty – an update on reform

Caroline Cooke is Policy Manager at BGS and Premila Fade is BGS’s End of Life Care Lead.  Here they explain the background to, and significance of, the report published by the Law Commission, “Mental Capacity and Deprivation of Liberty” on 17 March 2017.

What are DoLS?  The Deprivation of Liberty Safeguards (DoLS) are a set of protections for adults who lack the mental capacity to consent to deprivation of their liberty by, for example, admission either to hospital or a care home for treatment or care.  They were introduced as part of the Mental Health Act 2007.  The intention behind their introduction was to ensure that no-one is deprived of liberty without good reason, and the right of legal challenge is built into the authorisation process.  The idea was to close the so called ‘Bournewood gap’ whereby adults admitted informally (i.e. not via the Mental Health Act) did not have an automatic right to appeal.  The European Court of Human Rights (HL v United Kingdom) ruled that this lack of safeguards was a breach of article 5 ‘The right to Liberty’ of the Human Rights Act. Continue reading