End in Sight for DOLS

The end in sight for DOLS, asks Simon Burrows

In a somewhat damning report the House of Lords Select Committee has recommended a wholesale overhaul of those parts of the Mental Capacity Act 2005 that regulate the detention of mentally incapacitated people in hospitals and care homes. The report – see http://www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf

is scathing of the badly drafted Schedule A1 to the Act, introduced by the Mental Health Act 2007, which has attracted the title Deprivation of Liberty Safeguards (or DOLS) although this has been seen as a misnomer by many in the relevant professions for some time. As the Committee makes clear, many who should be safeguarded are not and many thousands of incapacitated people may be detained in care homes and hospitals throughout the country with little or no legal safeguards to protect them.

The report comes a week before the Supreme Court hands down its judgment in what has become the seminal case in determining which people who are placed in supported living arrangements and, by implication, hospitals and care homes are in fact deprived of their liberty. It is hoped that P (by the Official Solicitor) v Cheshire West & Chester Council and P & Q (By the Official Solicitor) v Surrey County Council when handed down on Wednesday 19^th March will clarify at least one difficult area that has led to the widespread misunderstanding that the House of Lords finds so prevalent.

Simon Burrows, who acted for P in the Cheshire West case from first instance to the Supreme Court, will provide another note on the judgment on Wednesday morning.