A final report and a draft bill were published by the Law Commission last month on legal protections for adults who lack capacity to make decisions regarding their care and accommodation needs (Mental capacity and deprivation of liberty, Law Com No 372; HC 1079, 13 March 2017). The paper calls for the Deprivation of Liberty Safeguards (DoLS) to be scrapped and replaced by a new set of rules.

Law Commissioner Nicholas Paines QC (pictured) said: ‘It’s not right that people with dementia and learning disabilities are being denied their freedoms unlawfully.’ He argued that there are ‘unnecessary costs and backlogs at every turn’ and that family members are often left without the support they need.

In 2014, a House of Lords Select Committee on the Mental Capacity Act 2005 report (Report of session 2013–14. Mental Capacity Act 2005: post-legislative scrutiny, HL Paper 139, 13 March 2014) found that the safeguards were frequently not used and this left people without the protections which parliament had intended. Paines believes the DoLS ‘were designed at a time when considerably fewer people were considered deprived of their liberty’ and that they are failing. The Commission believes its proposed Liberty Protection Safeguards would ensure that deprivation of liberty is only authorised in urgent situations.

The community care law specialists Legal Action spoke to about the report agreed that the current system is not working in the interests of vulnerable adults, but questioned whether the government would come up with the cash to make the proposals work.