One month before the EU referendum was held, the Law Commission published their Interim Statement on their consultation of the law of mental capacity and deprivation of liberty, brought about by the impact of 2014’s Cheshire West judgement.
The Interim Statement dramatically rolls back the vision that the Law Commission put forward in their original proposals from last year.
Although the original proposals were praised for their ambition, which outlined a system that emphasised having fully compliant care plans which would authorise care and treatment and therefore preventing the need for a deprivation of liberty ever arising, many never expected the proposals to stay as they were due to the amount of resource, finance and time required to implement such a comprehensive overhaul.
The Interim Statement’s conclusion is that ‘legislative change is the only satisfactory solution’, and that this change should have the aim of trying to reduce the administrative burden and associated costs of complying with DoLS, while focusing solely on ensuring that those deprived of their liberty have appropriate and proportionate safeguards.
The Law Commission has said their final proposal and draft legislation will be produced by the end of 2016. However, now that we have begun the process of exiting the EU and we begin the task of unpicking and rewriting UK/EU law, surely this mean that any DoLS reforms will take a backseat to the wider issues brought on by Brexit?
We must also remember that whatever the final recommendations look like from the Law Commission, it will then be for the government to decide what, if anything, they do with them.
The here and now
Since Cheshire West, it has been well documented that there has been a tenfold increase in DoLS applications in England, and 16 fold in Wales. More worryingly is that only half of those applications have been processed, leaving thousands of people unlawfully deprived of their liberty.
So, although there is uncertainty of what any suggested DoLS reforms may look like, and an unknown timescale of when they may likely happen, we must not lose sight that the current framework surrounding DoLS, however imperfect, continues to govern deprivation of liberty cases and will do so for the foreseeable future.
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A Brexit BIA - Keep Calm and Carry On
