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Browne Jacobson response to Law Commission on DoL

6 November 2015

Browne Jacobson has prepared a response based on discussions and events held in our offices in Nottingham, Birmingham, Manchester, Exeter and London since the publication on 7 July 2015 of the consultation paper on reform of the law on mental capacity and deprivation of liberty.

As an overview:

  • There is a broad consensus that reform of the law on this issue is urgently required.
  • The Law Commission's wide ranging and ambitious proposals are therefore very welcome.
  • It is recognised that it is significantly easier to offer a critique of both the law as it currently stands and the Law Commission's specific proposals than it is to offer concrete alternative solutions (we have endeavoured to capture this wherever it was possible to do so).
  • The broad aspirations adopted by the Law Commission – a scheme which is based in the Mental Capacity, outcomes focused, "non-elaborate", ECHR compliant, and tailored to be proportionate to different settings - were all welcome (with the possible exception of the significant minority who favoured extension of the Mental Health Act to deal with deprivation of liberty in all settings).
  • In many cases, where the specific proposals were received with some scepticism, this was often rooted in concern about the availability of appropriate resources for effective implementation, or in the relative lack of detail, in some cases, in the Law Commission's outline proposals at this stage.
  • Among our clients, the biggest topic of discussion was the scheme proposed for the hospital and hospice setting, and in particular the proposal that a doctor may authorise a deprivation of liberty in a hospital for up to 28 days with what was perceived to be relatively few safeguards, and no independent scrutiny.

A number of people told us that they would prefer to retain and adapt the current system, and felt that many of the concerns about DOLS reflected what they perceived as a disparity between the level of resources and the scale of the task.

We are grateful to have had the opportunity to discuss the Law Commission's proposals with them on a number of occasions and would be pleased to continue to offer all possible support as they are refined and implemented.

Download the full response

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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