The Law Commission has delivered its final recommendations to ministers on replacing the Deprivation of Liberty Safeguards, after concluding the current system is “in crisis”.
The government asked the commission to review the DoLS amid concerns councils were failing to cope with a tenfold rise in deprivation of liberty cases triggered by the Supreme Court’s landmark ‘Cheshire West’ ruling in March 2014.
The commission has now published its final report and draft legislation for a new system to authorise care placements involving deprivation of liberty for people lacking capacity. The commission believes its proposed Liberty Protection Safeguards (LPS) scheme will be less onerous than the DoLS while still offering human rights protections.
The LPS would cover a broader group of people than the DoLS, which is restricted to placements in care homes and hospitals.
Firstly, the LPS would apply to any setting that might give rise to a deprivation of liberty, including shared lives schemes and supported living. Secondly, it would also cover 16 and 17-year-olds, whereas the DoLs only applies to over 18s.
While the scope of the LPS is broader than the DoLS, it would involve a two-tier system of protections whereas the DoLS provides the same checks to all cases.
Under the current system, every DoLS case is coordinated by best interests assessors (BIAs), typically specially trained social workers. The BIAs must set up six assessments, the most significant of which is a ‘best interests assessment’.
Under the LPS, the BIA role would be revised to a new ‘Approved Mental Capacity Professional’ (AMCP) role and the requirement for a best interests assessment in every case is dropped. AMCPs would only be focused only on more “serious” cases where care arrangements are contrary to the person’s wishes.
When a potential deprivation of liberty is identified, the responsible body, in social care cases a local authority, would be required to arrange a capacity assessment, a medical assessment and a check that the proposed care placement is ‘necessary and proportionate’ (in effect the latter replaces the ‘best interests’ assessment). The council would be required to consult with friends or family of the person.
Every case would then be checked by an ‘independent reviewer’, an employee of the responsible body who is not involved in the person’s care.
If the reviewer felt the conditions for an authorisation are met then they could approve it. However, if there are concerns the proposed placement is against the person’s wishes then the case would be referred to an AMCP. The AMCP would be required to meet with the person and scrutinise the assessments carried out before determining whether to authorise the placement or not.
“The Approved Mental Capacity Professional would be expected to consider matters using their own professional judgment rather than simply to consider whether those conducting the assessments could reasonably reach the conclusions that they did. The obligations upon them are therefore more onerous than upon the independent reviewer,” the commission’s report said.
The commission said its system would ensure “greater prominence” is given to the person’s human rights during the care planning stages and help cut “unnecessary duplication” by taking previous assessments into account.
It said the widespread reports of case backlogs and breached statutory timescales since the Cheshire West ruling meant that any notion the DoLS could be “patched up to cope” was not sustainable.
“Article 5 rights must be practical and effective. It is not acceptable to continue with the current system where many people’s rights have become theoretical and illusory,” the report said.
The commission also recommended wider reforms to improve decision-making across the Mental Capacity Act, not just in cases involving deprivation of liberty. The MCA proposals would place a requirement on decision-makers to place greater weight on the person’s wishes and feelings when making decision under the act and confirm in writing that they had complied with the act.
It is now up to the government to decide whether to take the commission’s recommendations forward.
Law Commissioner Nicolas 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.”
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The proposals ask for authorisations by commissioning groups before the liberty depriving arrangements take place-both reasonable.However what about self funders and delays in discharge currently covered by ‘pragmatic funding ‘ prior to P’s DST?
why no appeal and legal aid to tribunal like for mental health act cases.
the reviewer will become like reviewing officer is children social care and they’re already firefighting!
Yet another complication to an already complicated problem.
Why not just limit DOLS/LPS to …”more ‘serious’ cases where care arrangements are contrary to the person’s wishes”?
I fully agree, the red tape and paperwork has become a thorn in every care professionals side creating loathing of a burocraric system which overshadows IRS real purpose. Many MCA’s DOLs are completed for very minor areas of life that should be part of the care planning process.
This seems like a common sense, workable proposal. I hope the government agrees and implementation is swift.
This time I think the Law Commsion has got it right… I hope the government agrees.
Very interesting I teach deprivation of liberty and this was a very interesting read if it does come into fruition I will have to keep on top of this so that I am given the correct information
How would the new arrangements protect people like HR in the original Bournewood case, who was unable to state that the placement was against his wishes?
I wonder if the most vulnerable will lose safeguards?
AMCPs would only be focused only on more “serious” cases where care arrangements are contrary to the person’s wishes.
Hmmmm. We need to see what they define as “serious”.
So where does all this leave independent BIAs?
LA’ just simply could not afford the cost of DOLS since Cheshire West. Independent BIA’s who care about Public Services will just accept the reality and move on. We should all be welcoming this new proposal.
Why are you not publishing comments from people who agree with the Law Commissions proposal for DOLS?
I personally know of two such comments you have ignored. I did not expect this level of BIAS from ‘Community Care’… shame