It may become necessary for many people to receive care that restricts their personal freedom, such as where a person needs to move into a care home or measures taken at home for their own safety.
Where this happens to a person who is or will be receiving care in a care home or hospital, the Deprivation of Liberty Safeguards (‘DoLS’) exist to protect that person where they are unable to consent to the care they are receiving and therefore to the deprivation of their liberty.
The Mental Capacity (Amendment) Bill suggests changes to this system and finished being considered by the House of Lords in December. It is proposed that the DoLS be replaced with a new system called the Liberty Protection Safeguards. Despite their slightly friendlier name and the streamlined processes proposed, many have suggested that should the bill be passed into law vulnerable people would be at increased risk of being deprived of their liberty where it is not in their best interests.
When are the DoLS used and why?
Where a hospital or care home considers it likely that a person will be deprived of their liberty in the next 28 days they must apply to the local authority for a standard authorisation. This must be granted by the local authority subject to various conditions. Where a deprivation of liberty is imminent or already taking place, an urgent authorisation may be sought.
After authorisation is granted numerous safeguards are available. These include the person being appointed a relevant person’s representative who can require the authorisation to be reviewed or challenge it in the Court of Protection and also the obligation on the local authority to instruct an IMCA (Independent Mental Capacity Advocate) if the person is unable to exercise their rights. There is also a requirement that the local authority review the authorisation following a change in circumstances, such as a change to the person’s disorder.
Why is reform needed?
The government was prompted to reform the current system by criticisms outlined in a 2017 report by the Law Commission.
The Law Commission’s main criticisms of the DoLS were that the system is simply unable to cope with the number of applications required and that often in practice consideration of whether a standard authorisation should be given takes place after the person’s freedom has already been restricted, such as their having already moved into a care home. The average number of days between DoLS applications being received and being completed across England and Wales in 2016-2017 was 120 days (although there were wide variations region-to region) which is pretty staggering given that urgent applications should be completed in 14 days and standard ones in 28.
The Law Commission also criticised the fact that cases that take place outside a hospital or care home have to be considered by the Court of Protection at great time and expense to the patient and their family.
What are the proposed reforms and will they do the trick?
One of the main differences proposed as part of the Liberty Protection Safeguards is that deprivations of liberty must be authorised by the “responsible” body i.e. within the care home or hospital themselves rather than by the local authority. The local authority would be required to authorise the arrangements in all other cases, such as where the patient is living at home.
The hope is that if the number of situations where local authorities need to authorise deprivations of liberty are reduced (only those that do not take place in a care home or hospital) the burden on the authorities will be lessened and authorisations more likely to take place properly and when required. Another resource saving measure introduced is the requirement for an approved mental capacity professional only in cases where the person objects. The number of assessments required as part of the process has also been reduced from six to three.
The bill has been criticised for proposing that where there is a potential deprivation of liberty in a care home care home managers should lead on the assessments and confirm to the local authority that the criteria are met. It is felt by many that in such cases there is insufficient independent scrutiny as care home managers may have an interest in deprivations of liberty in their institutions being approved. Some care homes have also complained about this aspect of the bill.
The Law Society has expressed such concerns and has also stated that the bill does not include a legal right to request a review of a decision or for the patient or their relatives to be told how to challenge a deprivation of liberty. The Law Society has also accused the government of “cherry picking” from the Law Commission’s report. The government did not accept all of the Law Commission’s recommendations, such as that the safeguards also apply to 16 and 17 year olds and in relation to the interface between the DoLS system and the Mental Health Act.
Let us watch this space as the bill is considered by the House of Commons and hope that the government takes the various comments and criticisms that have been made on board. Here is an excellent opportunity for a new and improved system to be put in place to protect vulnerable people who are deprived of their liberty and to support their families.
If you have any questions or would like to discuss any of the issues raised in this blog, please feel free to contact Olivia Burke, a trainee solicitor within our Private Client team. Olivia is contactable by telephone on 01737 854 476 or by email at [email protected]
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