The Law Commission has launched a 3-year project to consider how deprivation of liberty should be authorised and supervised in settings other than hospitals and care homes.

At the request of the government, the Law Commission will draft a new framework for deprivation of liberty outside of the settings covered by the current Deprivation of Liberty Safeguards (DoLS). The DoLS cover hospitals and care home settings but not supported living, for example.

The DoLS aim to ensure people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom. The safeguards should ensure that a care home or hospital only deprives someone of their liberty in a safe and correct way, and that this is only done when it is in the best interests of the person and there is no other way to look after them.

But the DoLS have been criticised since they were brought in in 2007. Criticisms include being overly complex and bureaucratic, and that many care staff don’t understand them fully even now.

This criticism intensified in March this year when a House of Lords committee report called the DoLS “not fit for purpose” and said the government should scrap them.
Also in March, two Supreme Court judgements - P v Cheshire West and Chester Council and P and Q v Surrey County Council – heaped further pressure on the DoLS, by lowering the threshold for what constituted a deprivation of liberty in care.

In her judgment, Lady Hale outlined specific criteria that define when a person is deprived of their liberty: if they are not free to leave and if they are under continuous supervision and control. Lady Hale also listed three criteria that are categorically not relevant to the assessment: the 'relative normality' of a person's circumstances; the reasons or motives behind the circumstances; and whether or not the person objects to the living arrangements.

Since then, deprivation of liberty cases have risen, with councils expecting them to rise 10-fold this year. The Department of Health has accepted that there are difficulties with DoLS and the Law Commission’s project is one of number of measures announced designed to improve the way the safeguards work.