Yesterday (13th March 2017), the Law Commission published it’s long awaited report about the Mental Capacity Act 2005 (MCA) and Deprivation of Liberty. It’s a biggie and if you prefer the summary, it can be found here. The Deprivation of Liberty Safeguards (DoLS) have been fraught with criticism since their inception in 2009. None less than in 2014 when 2 very significant events signaled the end of DoLS as we know it. The first was a scathing report from the Lords Select Committee on the MCA which branded the DoLS as “not fit for purpose” and proposed it’s replacement. The second was a Supreme Court decision that has become known as Cheshire West which widened the previous interpretation of who required these safeguards … by 10 times as much! This left those with responsibility for authorising any deprivation of liberty unable to cope with the demand leaving thousands of people unlawfully deprived of their liberty and without essential safeguards such as speedy access to a Court to decide whether the deprivation of Liberty was lawful.
So, back to yesterday. Of course this is the very early stages of any changes to legislation but the report has now been delivered to Parliament, and the ball rolling.
Some of the Key Points of the Report:
- The Deprivation of Liberty Safeguards to be replaced by the Liberty Protection Safeguards
- The Liberty Protection Safeguards will apply in all settings (the current DoLS scheme only applies to hospitals and care homes)
- They will apply to anyone over the age of 16 (the current scheme only applies to those 18+)
- A statutory authority to deprive someone of their liberty temporarily would replace the current urgent authorisation and only be permitted in truly urgent situations and sudden emergencies.
- Authorisation to deprive someone of their liberty would be decided at the planning stages rather than after they had moved to a care home for instance. This would lead to a full analysis of all available options of which there are likely to be more if the process is undertaken earlier.
- The DoLS simply authorises a deprivation of liberty. The Liberty Protection Safeguards would authorise particular arrangements reducing the need for a new assessment if the arrangements were provided in multiple locations such as respite facilities and acute hospitals.
- There will be no more Supervisory Body. Authorisation would be granted by those responsible for arranging the care. So, for instance, for a person being discharged from hospital the Responsible Body will be the NHS Trust, for someone receiving Continuing Healthcare Funding the Responsible Body will be the Clinical Commissioning Group and for others will be the Local Authority. The responsible Body will be the authority responsible for meeting a person’s needs under the Care Act 2014.
- The role of the Best Interest Assessor will also cease under the new proposals. Instead, a new role of Approved Mental Capacity Professional will be introduced. The Approved Mental Capacity Professional will provide a layer of scrutiny to the proposed arrangements in cases where the is a higher level of complexity such as where someone is objecting to the arrangements.
- There will be changes to the capacity assessment. Under the DoLS scheme, the focus is on the placement rather than the particular care arrangements. This will be flipped on it’s head under the Liberty Protection Safeguards.
My initial thoughts are welcoming of a scheme that removes some of the duplication that is currently seen and introducing a system that is integrated within the care planning process. I have completed countless DoLS assessments for people who have already moved into a care home, their house already sold and are left with very few (if any) realistic options. Completing a Best Interest Assessment at this stage in the proceedings sometimes gives little more than lip service to the notion of what might be in a person’s best interests. Numerous times I’ve concluded that it is in a person’s best interests to remain in a care home when I might not have come to the same conclusions if they still had their house and alternatives to a care home could have been considered.
Whilst the current DoLS scheme is clunky, full of duplication, not able to cope with the post-Cheshire West demand and somewhat of an afterthought full of worrying terminology for people and their families, there are positive aspects to the current DoLS scheme which I hope are developed in the new Liberty Protection Safeguards. The independent analysis of a person’s circumstances is valuable and often raises concerns that can be addressed by other professionals. In theory this should also be the case under the Liberty Protection Safeguards but the proof of the pudding will be how it works out in practice. As part of the care planning and authorisation, there will be a level of independent scrutiny and in complex cases a referral to an Approved Mental Capacity Professional. Front-line Social Work teams are stretched to the limits right now, I wonder how this will be managed to ensure that the level of scrutiny doesn’t slip to become a tick-box exercise leaving people with no independent scrutiny.
Whilst there is no set time frame for the changes as of yet, Law Commissioner Nicolas Paines QC said in a press release:
“It’s not right that people with dementia and learning disabilities are being denied their freedoms unlawfully. There are unnecessary costs and backlogs at every turn, and all too often family members are left without the support they need.
“The Deprivation of Liberty Safeguards were designed at a time when considerably fewer people were considered deprived of their liberty. Now they are failing those they were set up to protect. The current system needs to be scrapped and replaced right away.
“We know there are enormous pressures on health and adult social care at the moment and our reforms will not only mean that everyone is given the protections they need, but could also deliver a saving to the taxpayer. That’s cash that can then be directly reinvested to support those most in need.”