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Law Commission launches three year enquiry into ‘deprivation’ of liberty

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.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Dr David Bennett says:

    Beware! To realise what is going on here one only has to learn of the Leonard Lawrence case the former pilot who was poisoned by a fume event. Then overmedicated and wrongly diagnosed. Certified as lacking mental capacity when the truth in reality was he had suffered a brain injury from the toxins in the fumes. The Legal profession, Social Services and sadly to admit the Judiciary let him down badly slapping CP3s on him and totally stripping him of every asset he had. This is a dangerous precedent and slippery slope not unlike which started occurring in Germany during 1938. It is the sinister thinking and objective aims these limited individuals are bringing into play we should be highly suspicioue of.
    It is not Ministers in Parliament who make these long reaching and life changing decisions, it MUST include from the very start those wishes of family members, not unidentifiable persons hiding within the Family Division Courts, even worse The Court of Protection that sits in secret and even prohibits family members from being in the Court. That is NOT justice and neither can it be Justice seen to be done.
    So to all again I reiterate BE AWARE of what is occurring here. Search the internet placing ‘ Leonard Lawrence Pilot / Ministry of Justice in the search engine. Place also ‘Lee Gililland disabled person’ then see what your response would be. Hoping this may be useful.

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