Deprivation of Liberty Safeguards: The Future Looks a Little Less Clear

Created: 5/26/2016

Deprivation of Liberty Safeguards

Yesterday the Law Commission published their Mental Capacity and Deprivation of Liberty Interim Statement. It follows their consultation paper published in July 2015 which set out a complete overhaul of the Deprivation of Liberty Safeguards (DoLS) and proposed a new 'Protective Care' scheme that was wider in scope than the current safeguards.  It is no secret that the current safeguards have come under increasing criticism, particularly since March 2014 when the House of Lords post-legislative scrutiny committee on the Mental Capacity Act published a report which concluded that the DoLS were not fit for purpose and proposed their replacement.  This was also around the time where those affected by the DoLS was increased ten-fold following a Supreme Court Judgement generally known as the Cheshire West case.

Protective Care

The initial proposals by the Law Commission focused on a new scheme called Protective Care which had three elements to it;  the supportive care scheme, the restrictive care and treatment scheme, and the hospitals and palliative care scheme.  The intention was to provide varying levels of safeguards for those who lack capacity to decide where they should live and not limit the safeguards to those who live in care homes or who are in hospital as is currently the case.

Supportive Care

The supportive care scheme was a proposal to protect people who were not necessarily subject to the level of restrictions that might amount to a deprivation of liberty but still lack capacity to decide where to live.  This scheme would provide safeguards around a person's rights to private and family life under the ECHR (European Convention on Human Rights).  The safeguards offered under this scheme would include ensuring that a proper assessment and care planning had taken place and that the person had a right to an advocate (or appropriate person).

Restrictive Care and Treatment

The restrictive care and treatment scheme would be a direct replacement for the current DoLS although would be extended to include those living in supported living and shared lives as well as those living (or going to live) in a care home.  There were some differences proposed to the current safeguards.  Instead of a supervisory body's authorisation, referrals would be made to a new role, an Approved Mental Capacity Professional (AMCP). The AMCP would then complete an assessment (or authorise someone else to complete the assessment) and then decide whether to authorise a deprivation of liberty.  The proposed safeguards for those who were deprived of liberty would also differ from the current DoLS scheme.  The AMCP would oversee the care and treatment, ensure that any conditions were being met and have regular review meetings.  Similar to the current DoLS scheme, the person and their representatives would have rights to seek reviews of the care and treatment and apply to the First-tier Tribunal to challenge the restrictive care and treatment.

Hospitals & Palliative Care

The hospitals and palliative care scheme (like the supportive care scheme) would be an addition the the current DoLS scheme and apply specifically to hospitals and palliative care settings.  For the first 28 days, a clinician and independent doctor could authorise a deprivation of liberty (similar to an Urgent Authorisation). After 28 days, an assessment would be required by an AMCP.  Under this scheme, a person would also have rights to an advocate and the person and their representative would have rights to seek reviews of the care and treatment and apply to the first-tier Tribunal to challenge the restrictive care and treatment.

So Where Are We Now?

Having completed their consultation, the Law Commission have made the following interim conclusions:

• There is a necessity for a new scheme that delivers article 5 ECHR safeguards in a meaningful way for the relevant person and their family.  Also that a new scheme should not be reduced to a bare minimum because of local authority budgetary constraints.
• The new scheme must demonstrably reduce the administrative burdens and associated costs of complying with DoLS.  Therefore, the Protective Care scheme is no longer the proposal, instead a scheme to provide appropriate and proportionate safeguards for those deprived of their liberty.
• They propose to recommend a more straightforward, streamlined and flexible scheme. The responsibility for establishing the case for a deprivation of liberty would rest with the commissioning body (NHS or Local Authority) that is arranging the care.  This would take responsibility away from the care provider and ensure that those commissioning the care could provide evidence to support its case.
• Those deprived of their liberty would have safeguards similar to those currently in place such as the right to advocacy and the rights to seek reviews of their deprivation of liberty and bring legal proceedings to challenge it.
• The Mental Capacity Act would be amended to provide Article 8 rights that would have been provided under the supportive care scheme.
• There will not be a need for new assessments to be completed where an authorisation is being reviewed.  Commissioning bodies will be able to rely on current care plans and assessments under the Care Act during the review of an authorisation.
• A defined group of people will receive independent DoLS authorisation by an Approved Mental Capacity Professional.  The Approved Mental Capacity Professional would not now review or monitor cases.  With the number of people now considered to be deprived of their liberty (following the Cheshire West case), the Law Commission don't consider it proportionate or affordable to include everyone deprived of their liberty in this group.
• A separate hospital scheme is not necessary as the new proposals can be used across various settings.

It would appear that the Law Commission no longer intend to propose the supportive care and hospital and palliative care schemes outlined above.  Instead, safeguards will be provided through existing measures such as Care Act assessments and reviews.  What we are left with is the restrictive care and treatment scheme which if I'm not mistaken is very similar to the current DoLS scheme with a smaller group of people who would fall under the scheme.  I can't help but feel that budgetary pressures have watered down what was a sensible, graduated approach to restrictive care but still provided an element of independent scrutiny from someone outside of budgetary pressures.  The new proposals rely heavily upon Care Act assessments and reviews being completed in a timely fashion.  Having completed Best Interest Assessments, I have seen first-hand how independent scrutiny of a person's care can provide some very significant changes that are not always identified or implemented during a Care Act assessment or review.