Mental capacity legislation in England and Wales – replacing arrangements for authorising a deprivation of liberty

Article 5 of the European Convention on Human Rights (ECHR) guarantees individual liberty. It prohibits arbitrary deprivations of liberty: any deprivation of liberty must be subject to certain safeguards, including the ability to refer any such deprivation for appropriate legal review. In October 2004 the European Court of Human Rights (ECtHR) handed down a judgement in what has come to be known as the Bournewood case.1 In brief, the Court ruled that the individual in question, known as HL, had been unlawfully deprived of liberty while being informally admitted in a British psychiatric hospital. HL lacked the capacity to consent to the arrangements for his care and, as he was compliant with those arrangements, he was not formally detained under the Mental Health Act. Although the British House of Lords held, by a majority, that HL had not been unlawfully detained under the common law, the ECtHR held that his detention was in breach Article 5 ECHR.2

In response to the European Court ruling, the UK Government introduced, via an amendment to the Mental Capacity Act 2005 (MCA), the Deprivation of Liberty Safeguards (DoLS). (The MCA only applies to England and Wales. Governments in Scotland and Northern Ireland have made their own arrangements in response to the ECtHR ruling.) These safeguards were designed to ensure that whenever an individual was identified as being provided with care or treatment in circumstances that amount, or might amount, to a deprivation of liberty, certain safeguards were in place. These were designed to ensure that any such deprivation was necessary, proportionate and in the individual's best interest.

DoLS are a procedural arrangement to ensure ECHR compliance. From the outset concerns were expressed about their complexity, their administrative burden, and, critically, their ability to provide the kinds of protection that vulnerable adults required. …