Law Commission publishes Interim Statement on Reforming the Deprivation of Liberty Safeguards
Published 27 May 2016
The Law Commission has published an Interim Statement setting out its current thinking on reform of the Deprivation of Liberty Safeguards (DoLS) following on from the consultation process which took place last year.
The consultation sought feedback on a proposed new system to replace the DoLS called 'Protective Care' (with 3 elements to it – the supportive care scheme, the restrictive care and treatment scheme, and the hospital and palliative care scheme), including extending the scheme to domestic settings.
The central message is that the Law Commission remains of the view that the problems with the DoLS can only be resolved by the wholesale replacement of the current system.
However, what it is now being proposed is considerably narrower in scope than the protective care scheme originally envisaged. The new scheme will now focus solely on those who are deprived of their liberty, and the plan for a 'supportive care scheme' for people who are not deprived of their liberty has been dropped, as has the plan for a separate hospital scheme.
This was one of the Law Commission's most extensive public consultations (583 written responses).
Key points from the consultation included positive feedback about:
- The need to replace the current system;
- Streamlining the authorisation process including removing the need for 6 separate assessments in each case.
And concerns about:
- Different tiers/levels of safeguards could be cumbersome and overly complex;
- Whether any system based on the Cheshire West 'acid test' definition of a deprivation of liberty is sustainable
financial implications of the proposed new scheme.
The 'headline' interim conclusions reached by the Law Commission are as follows:
- There is a compelling case for replacing the current DoLS scheme;
- The new scheme must reduce the administrative burden and associated costs of the current system;
- It is proposed that responsibility for establishing the case for depriving someone of their liberty will shift from the care provider to the commissioning body (i.e. local authority or CCG). This is a significant departure from the current DoLS scheme;
- A more straightforward scheme for authorising deprivation of liberty is proposed, including:
- A simplified process for authorising deprivations of liberty – e.g. it will be open to the commissioning body to make use of existing care plans and to rely on existing assessments where appropriate;
- Evidence to establish the case for a deprivation of liberty would include a capacity assessment and objective medical evidence of the need for a deprivation of liberty on account of the person's mental health condition, although it is unclear exactly how it is envisaged this will work in practice, or what the future role of Best Interests Assessors will be;
- The proposed scheme will apply to all settings – hospitals, care homes, supported living and shared lives accommodation, domestic and private settings.
- Consideration is being given to whether a (yet to be) defined group of people, who are subject to greater infringements of their rights - e.g. right to private/family life - should receive additional independent oversight of their deprivation of liberty from an Approved Mental Capacity Professional;
- The scheme now being proposed will focus solely on people who are deprived of their liberty – i.e. the idea of a 'supportive care scheme' has been dropped. Instead, there will be some amendments to the Mental Capacity Act – e.g. to ensure proper consideration of whether it is necessary to remove a person from their own home and greater emphasis on the person's wishes and feelings when making decisions in their best interests;
- The proposal for a separate hospital scheme has also been dropped;
- There will be no new tier of detention under the Mental Health Act for compliant incapacitated hospital patients;
- There will be no legal requirement to conduct a Coroner's Inquest for people subject to the new scheme;
- Those deprived of their liberty (and others such as family members and advocates) will have a right to challenge the deprivation of liberty, but no final decision has been reached about whether the First-Tier Tribunal (rather than the Court of Protection) will review cases under the new scheme.