The Law Commission - final report and draft bill delayed until March 2017

Final report of its review of the law of mental capacity and deprivation of liberty and draft bill


Hannah Taylor

Hannah Taylor

Senior Associate

The Law Commission has announced that the publication of its final report of its review of the law of mental capacity and deprivation of liberty and draft bill will be delayed until March 2017. This delay:

  • Should not, according to the Law Commission, delay the introduction of any new legislation that is developed; and
  • Will not impact the amendment to the Policing and Crime Bill which is due to remove the automatic requirement for a Coroner to hold an inquest when someone dies who was subject to a DoLS Authorisation.

Tim Spencer-Lane QC, who is leading the Law Commission's review of the law of mental capacity and deprivation of liberty, wrote to all stakeholders in the review yesterday and noting:

"The reason for the delay is the complexity of the task of drafting legislation on such an important issue. It is vitally important to get the law right here. Badly drafted, over-complicated law is a big part of the problem with the current DoLS, and we do not want to fall into the same trap again.
We are very aware that the project deadline was brought forward at the request of the Department of Health and for a good reason: there is an urgent need for the system to be improved. We know too that many stakeholders are waiting for our report and draft Bill and will be disappointed with any delay.  For this we apologise.
But we are convinced that it is far more important to deliver a fully completed draft Bill that can deliver effective safeguards to those being deprived of liberty. We are also confident that our  new publication date will not delay the introduction of legislation into Parliament, should the Government wish to do so.   It will be for Government to decide how to take forward the recommendations and draft Bill."

More information about the Law Commission's review can be found at its website.

A link to the current Chief Coroner's Guidance on the impact of a Deprivation of Liberty Authorisation on the inquest process can be found here.

Baroness Finlay announced the amendment to the Policing and Crime Bill which, will, amend the Coroners and Justice Act 2009 to remove those who are deprived of their liberty under the DoLS Authorisation regime from the meaning of "in State detention" – and therefore, from the requirement to automatically hold an inquest into their death.

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