Four years to the day the government was told to ‘start again’ on the safeguards covering people detained under the Mental Capacity Act 2005, the Law Commission has unveiled a scheme to replace legislation branded ‘not fit for purpose’.
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 for care or treatment. The safeguards also enable the family or patient to challenge any such deprivation.
A House of Lords select committee report published on 13 March 2013 stated that the safeguards were frequently not used when they should be, leaving individuals without the protections parliament intended.
The commission, in a final report and draft bill published today said: ‘In our view, there remains a compelling case for replacing the DoLS. There is widespread agreement that the DoLS are overly technical and legalistic, and too often fail to achieve any positive outcomes for the person concerned or their family.
‘Consultation further suggested that the best interests assessment tends to “rubber stamp” the decision already taken by the care team, meaning that the DoLS are not really a safeguard. This is compounded by the urgent authorisation system which too often leads to the justification for a deprivation of liberty only being considered after the event.’
The commission’s proposed ‘liberty protection safeguards’ 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.’
Urgent authorisations would be replaced with a statutory authority to deprive someone of their liberty temporarily in ‘truly urgent’ situations and emergencies, but only to enable life-sustaining treatment or prevent a person’s condition deteriorating.
A deprivation of liberty could not be imposed on someone until the proposed arrangements have been authorised.
The commission, an independent body that reviews the laws of England and Wales, was asked by the government to examine current safeguards after local authorities experienced a tenfold increase in applications in England and a 16-fold increase in Wales following the Supreme Court’s Cheshire West judgment, which widened the number of vulnerable people considered to be deprived of their liberty.
The commission today said an increasing number of DoLS referrals are unassessed and statutory timescales are routinely breached.
Law commissioner Nicholas Paines QC said: ‘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.’
The commission’s proposed scheme would focus on whether a deprivation of liberty is necessary and proportionate at the stage where arrangements are being devised. The safeguards would apply to hospitals, care homes, domestic settings and supported living.
Paines said: ‘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.’
Responding to today's report and bill, Law Society president Robert Bourns said: 'As our population ages and the number of people who need long-term care grows, we think the existing measures to protect people who lack mental capacity are not fit for purpose.
'We would welcome streamlined DoLS to provide vigorous protection to those who are after all some of the most vulnerable people in our society. Any new scheme should strengthen vulnerable individuals' ability to challenge measures that are overly restrictive or abusive.
'It should also be straightforward for those responsible for the care of people who lack mental capacity - care homes, hospitals and local authorities - to comply with safeguards. At the same time, penalties for non-compliance must be enforced more consistently than they currently are. This is in the best interests of those the measures seek to protect, as well as their families and any institutions with responsibility for people who lack mental capacity.'