Yesterday the Law Commission published their Mental Capacity and Deprivation of Liberty Interim Statement. It follows their consultation paper published in July 2015 which set out a complete overhaul of the Deprivation of Liberty Safeguards (DoLS) and proposed a new ‘Protective Care’ scheme that was wider in scope than the current safeguards. It is no secret that the current safeguards have come under increasing criticism, particularly since March 2014 when the House of Lords post-legislative scrutiny committee on the Mental Capacity Act published a report which concluded that the DoLS were not fit for purpose and proposed their replacement. This was also around the time where those affected by the DoLS was increased ten-fold following a Supreme Court Judgement generally known as the Cheshire West case.
The initial proposals by the Law Commission focused on a new scheme called Protective Care which had three elements to it; the supportive care scheme, the restrictive care and treatment scheme, and the hospitals and palliative care scheme. The intention was to provide varying levels of safeguards for those who lack capacity to decide where they should live and not limit the safeguards to those who live in care homes or who are in hospital as is currently the case.
The supportive care scheme was a proposal to protect people who were not necessarily subject to the level of restrictions that might amount to a deprivation of liberty but still lack capacity to decide where to live. This scheme would provide safeguards around a person’s rights to private and family life under the ECHR (European Convention on Human Rights). The safeguards offered under this scheme would include ensuring that a proper assessment and care planning had taken place and that the person had a right to an advocate (or appropriate person).
The restrictive care and treatment scheme would be a direct replacement for the current DoLS although would be extended to include those living in supported living and shared lives as well as those living (or going to live) in a care home. There were some differences proposed to the current safeguards. Instead of a supervisory body’s authorisation, referrals would be made to a new role, an Approved Mental Capacity Professional (AMCP). The AMCP would then complete an assessment (or authorise someone else to complete the assessment) and then decide whether to authorise a deprivation of liberty. The proposed safeguards for those who were deprived of liberty would also differ from the current DoLS scheme. The AMCP would oversee the care and treatment, ensure that any conditions were being met and have regular review meetings. Similar to the current DoLS scheme, the person and their representatives would have rights to seek reviews of the care and treatment and apply to the First-tier Tribunal to challenge the restrictive care and treatment.
The hospitals and palliative care scheme (like the supportive care scheme) would be an addition the the current DoLS scheme and apply specifically to hospitals and palliative care settings. For the first 28 days, a clinician and independent doctor could authorise a deprivation of liberty (similar to an Urgent Authorisation). After 28 days, an assessment would be required by an AMCP. Under this scheme, a person would also have rights to an advocate and the person and their representative would have rights to seek reviews of the care and treatment and apply to the first-tier Tribunal to challenge the restrictive care and treatment.
Having completed their consultation, the Law Commission have made the following interim conclusions:
It would appear that the Law Commission no longer intend to propose the supportive care and hospital and palliative care schemes outlined above. Instead, safeguards will be provided through existing measures such as Care Act assessments and reviews. What we are left with is the restrictive care and treatment scheme which if I’m not mistaken is very similar to the current DoLS scheme with a smaller group of people who would fall under the scheme. I can’t help but feel that budgetary pressures have watered down what was a sensible, graduated approach to restrictive care but still provided an element of independent scrutiny from someone outside of budgetary pressures. The new proposals rely heavily upon Care Act assessments and reviews being completed in a timely fashion. Having completed Best Interest Assessments, I have seen first-hand how independent scrutiny of a person’s care can provide some very significant changes that are not always identified or implemented during a Care Act assessment or review.