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Ethics briefing
  1. Sophie Brannan,
  2. Ruth Campbell,
  3. Martin Davies,
  4. Veronica English,
  5. Rebecca Mussell,
  6. Julian C Sheather
  1. Department of Medical Ethics, British Medical Association, London, UK
  1. Correspondence to Martin Davies, Department of Medical Ethics, British Medical Association, BMA House, Tavistock Square, London WC1H 9JP, UK; mdavies{at}bma.org.uk

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Law Commission consultation on mental capacity and deprivation of liberty

The Law Commission has issued a consultation paper considering how the law should regulate deprivations of liberty involving people who lack the capacity to consent to their care and treatment arrangements.1 The current regime, the Deprivation of Liberty Safeguards, more ordinarily referred to as DoLS, has long been unpopular. In March 2014, two events coincided that brought the shortcomings of the regime into sharp focus. To begin with the House of Lords postlegislative scrutiny committee on the Mental Capacity Act (MCA) published its report. Although supportive of the MCA itself, it was highly critical of the DoLS regime, which was grafted on to the MCA via a 2007 amendment to the Mental Health Act (MHA), declaring it ‘unfit for purpose’.2 Second, only a few days later, the Supreme Court handed down two judgements—collectively known as Cheshire West—that significantly increased the number of people deemed to be deprived of their liberty in health and care settings.3 Although in the early years of the DoLS regime the numbers using it were relatively low, with 7157 applications in 2009/2010, by 2013/2014 that number had risen to 113 300.4 Taken together, these two events have called into question the credibility of the regime. In particular, the combination of bureaucratic complexity, combined with the increased numbers involved, raises serious questions about the regime’s sustainability.

Beyond Article 5 European Court of Human Rights

The origins of the DoLS regime lie in a landmark legal case concerning a 48-year old man, ‘HL’, who was being informally treated in a psychiatric hospital.5 His contact with his carers was restricted and clear instructions were given that if he attempts to leave he would be detained under the MHA. Although this was a common practice at the time, he was found by the European Court to be deprived of his liberty without the necessary …

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