The Law Commission have published an interim statement concerning the consultation on deprivation of liberty. The consultation paper had set out a new scheme ('protective care') to replace the Deprivation of Liberty Safeguards (DoLS).
The interim conclusions indicate that the Law Commission are persuaded that the current DoLS system should be replaced, but they do not intend to press ahead with the protective care scheme, instead saying that they recommend a more straightforward, streamlined and flexible scheme for authorising a deprivation of liberty. The Commission plan that the responsibility for authorising a deprivation of liberty will fall to the local authority or NHS body arranging the relevant care and treatment, taking the responsibility from the care provider ( e.g. care home).
The Law Commission state that all those deprived of their liberty ( and family members and advocates) would be entitled to seek reviews and to bring legal proceedings to challenge their deprivation of liberty, but there is little detail about what precisely this would involve and how it would differ from the current system.
The interface between DoLS and the Mental Health Act is considered and the interim conclusion is that there should no longer be parallel regimes, so that the Mental Health Act would be used where applicable, and not the new deprivation of liberty scheme.
The interim statement reaches no definite conclusion about the important issue of whether the new deprivation of liberty scheme will be administered by the First Tier Tribunal (as used by those challenging detention under the Mental Health Act) or whether it will remain with the Court of Protection.
The next phase will be a final report from the Law Commission with draft legislation which is due to be published by the end of 2016.