Safeguards covering people detained under the Mental Capacity Act 2005 are 'increasingly unsustainable', the government has acknowledged.
Responding to the Law Commission's extensive review of the act and deprivation of liberty safeguards (DoLS), health minister Jackie Doyle-Price said the current system may divert resources from frontline care 'at a time when the system is coming under increasing pressure'.
Deprivation of liberty safeguards (DoLS) are a set of protections for adults who lack the mental capacity to consent to being accommodated in a hospital or care home. The safeguards also enable the family or patient to challenge any such deprivation.
Earlier this year, the commission said the safeguards were 'overly technical and legalistic, and too often fail to achieve any positive outcomes for the person concerned or their family'.
The commission proposed 'liberty protection safeguards' which would ‘dispense with the current carousel-like process in which, for example, a local authority makes a decision to place the person in a care home, the care home applies to the local authority for authorisation of the resulting deprivation of liberty and the local authority then decides whether to authorise a deprivation of liberty that they have already arranged.’
In her letter to Law Commissioner Nicholas Paines QC, Doyle-Price said the government will engage with stakeholders to understand how the changes could be implemented. It wants to hear from carers and families of those who have been deprived of their liberty and have first-hand experience of how the current system works.
Government officials are also working with the Ministry of Justice and Department of Health to consider 'how best to take forward' the commission's recommendations on mental capacity law relating to all children, changes to the best interests test, advocacy provision and the judicial body for determining challenges to deprivation of liberty authorisations.
Commenting on the government's response, Law Society president Joe Egan said safeguards 'should ensure that people can challenge measures that are overly restrictive or abusive' and must be straightforward so care homes, hospitals and local authorities can comply easily. Penalties for non-compliance must be enforced more consistently than they currently are, he added.
The government will publish a final response to the commission's report next spring.