Reforming the Deprivation of Liberty Safeguards (DOLS): What Is It Exactly that We Want?

Abstract

The Deprivation of Liberty Safeguards (DOLS) are the rules by which people who lack mental capacity can be deprived of liberty, most commonly in care homes or hospitals but also in supported accommodation and in the community more broadly.  The present DOLS are not viewed as a success, and the Law Commission has a mandate to propose revisions to them.  This paper is to start a debate as to what those revisions might look like.

The paper argues that the current focus on deprivation of liberty as contained in Article 5 of the ECHR is insufficient, both because the law is moving beyond this, and also because it has resonance with neither the professional carers who are likely to be the primary administrators of the new system nor the people perceived to lack capacity and their families.  Our starting point should instead be to ask what will have a practical and beneficial effect on the rights and experiences of the individuals concerned. 

The paper further considers the advantages and disadvantages of a system restricted to people lacking mental capacity.  It makes tentative proposals as to administrative systems which might be used as a basis for discussion, and proposes that enhanced advocacy may be a useful approach.