The Law Commission has opened its consultation on DoLS

B brr br brrrrrrrrrr! (That was a trumpet heralding the arrival of the Law Commission’s consultation on DoLS).

The consultation into the Mental Capacity Act 2005 deprivation of liberty safeguards has now been published.  The deadline for responses to the consultation is 2 November, and a final report and bill is due to be published in 2016.  There are some really big changes in their proposals, that are really interesting.  Here’s what the Law Commission says (I’ve highlighted the bits I think are really interesting):

Our consultation paper concludes that the DoLS are ‘deeply flawed’. We provisionally propose that they be replaced with a new system, to be called ‘Protective Care’. This system is not focused on authorising deprivations of liberty, but instead upon providing appropriate care and better outcomes for people who lack mental capacity and helping their family and carers.

We suggest that people who lack capacity and are living in care homes, supported living and shared lives accommodation be provided with a set of safeguards intended to ensure that their accommodation and care and treatment are right for them. Additional safeguards would then apply if a person accommodated in these settings requires some restrictive forms of care or treatment. We suggest that treatment of this kind be authorised with a minimum of bureaucracy by an independent professional to be known as an Approved Mental Capacity Professional.

A separate scheme of safeguards will apply for those accommodated in hospital settings and palliative care, and be tailored to recognise that people’s accommodation in these settings is usually temporary. Safeguards will also apply for those people deprived of liberty in family homes or other domestic settings, and will recognise the special sensitivities that surround a person’s own home.

We also suggest that anyone subject to the Protective Care scheme should be provided with an advocate to represent their views and wishes, and that any restrictive treatment and care decisions should be challengeable in a specialist tribunal, rather than in a court.

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