The Law Commission has launched a major new review of the law surrounding ‘deprivation of liberty’ outside care homes and hospitals.
The review is expected to take three years, not reaching report stage until summer 2017. The Commission will make specific recommendations and offer a draft bill for consideration.
‘Deprivation of liberty’ is a legal concept which concerns people who lack the capacity to make decisions about their own welfare, due to illness or mental disability. So-called ‘Deprivation of Liberty Safeguards’ were added to the Mental Capacity Act 2005 following a European Court of Human Rights ruling. This stated that decisions made regarding the welfare of people lacking capacity could sometimes amount to a ‘deprivation of liberty’, as defined by Article 5 of the European Convention on Human Rights.
The Safeguards were introduced to ensure that such rulings did not unnecessarily deprive vulnerable people of their liberty, and to ensure that they were properly regulated. However, they apply only to people in hospitals and care homes at the time of the ruling in in question. They have also attracted criticism, with some professionals claiming they are complex and inflexible.
The Department of Health has acknowledged problems with the Safeguards in their current form, Family Law Week reports. Earlier this year, a House of Lords select committee also called for significant reform.
The Law Commission’s project will examine deprivation of liberty in settings not covered by the Safeguards, as well as examining the implications of their conclusions for the Safeguards themselves.
The Law Commission reviews existing legislation and makes recommendations for reform.