[JURIST] People who lack the capacity to consent are being detained without appropriate checks and balances, according to a report [text, PDF] released by the UK Law Commission [official website] Monday. According to the report, people with dementia and learning disabilities are not being given Article 5 [text, PDF] safeguards before being deprived of their rights to liberty and security. Article 5 of the European Convention on Human Rights [text, PDF] provides that a person may be deprived of liberty if they are “of unsound mind” but in that case, they are entitled to proceedings that determine the lawfulness of their detention. The report detailed that in many cases, the supervisory body ensuring that the detention is lawful is the same local body that recommended the deprivation of liberty. The official figures show that a significant number of cases have breached the deprivation of liberty safeguards by not meeting timescales for assessment and that some cases have not been assessed at all. The report also alleges that the statutory provisions that control deprivation of liberty cases are regarded as convoluted.

The increased number of cases being considered under deprivation of liberty is a result of a 2014 Supreme Court judgment known as Cheshire West [decision, PDF]. The case gave a significantly widened definition of deprivation of liberty that applies in health and social care contexts. The issue of healthcare costs has also come to the forefront in the UK in recent years due to an aging population. According to Nicholas Paines [report], the UK law commissioner, the number of people with dementia in the UK is set to increase by 40 percent over the next 12 years. Paines predicted that if the current deprivation of liberty was replaced by a new scheme called the Liberty Protection Safeguards, the government could save £10m annually.