Deprivation of Liberty Safeguards – not fit for purpose

The Mental Capacity Act 2005 (“the MCA”) was described by the Lords as “a visionary piece of legislation”. Its aim was to keep any person who may lack capacity to make decisions for themselves (due to a brain injury, learning disability, dementia or otherwise) at the centre of decision-making.

The Report confirms the high regard in which the MCA is held, but finds shortcomings in the outworking of the legislation. The ethos of the MCA is about empowerment of the person, yet the Committee found that “risk aversion” and “paternalism” often still prevail within the health and social care sectors.

Lord Hardie, Chairman of the Committee said:

“The Committee believes that the Act is good and it needs to be implemented. What we want to see is a change in attitudes and practice which reflects the empowering ethos of the Act. To achieve this we recommend that overall responsibility for the Act be given to an independent body whose task will be to oversee, monitor and drive forward implementation.”

Particular criticism had been levelled at the Deprivation of Liberty Safeguards (“DOLS”). The intentions underpinning these provisions were noble – to provide protection in law for anyone being treated or cared for in circumstances that deprived them of their liberty. The evidence the Committee heard regarding the use (or more commonly, the lack of use) of the safeguards was alarming:

Lord Hardie:

“The evidence suggests that tens of thousands of people are being deprived of their liberty without the protection of the law, and without the protection that Parliament intended. Worse still, in some cases the safeguards are being wilfully used to oppress individuals and to force decisions upon them.

In summary, the Committee felt there is no alternative but for the current provisions to be scrapped and for Parliament to start again.

If you have questions or concerns regarding the impact or implementation of the MCA, or the Deprivation of Liberty Safeguards, please contact our specialist solicitors, Kate Jackson on kate.jackson@anthonycollins.com or Sheree Green on sheree.green@anthonycollins.com or 0121 212 7404.

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