Law commission calls Deprivation of Liberty Safeguards 'deeply flawed'

The Law Commission wants to replace the existing Deprivation of Liberty Safeguards (DoLS) with a new scheme that achieves better, more appropriate outcomes for people with care and support needs and reduces unnecessary burdens on local councils and the National Health Service (NHS).

The DoLS are part of the Mental Capacity Act 2005 and aim to make sure that people in care homes, hospitals and supported living facilities are looked after in a way that does not inappropriately restrict their freedom.

Nicholas Paines, public law commissioner, said: “Experience with the Deprivation of Liberty Safeguards teaches us that a one-size approach does not fit all. The system of Protective Care we are proposing could provide meaningful safeguards to, as well as meeting the needs of, those individuals who, due to mental incapacity, cannot consent to their own care.

“The Deprivation of Liberty Safeguards have been called ‘not fit for purpose’. The reforms we are provisionally proposing would sweep away the DoLS and establish a new purpose for Protective Care - to provide appropriate care and better outcomes for disabled and older people and their families.”

At the consultation the Law Commission, a statutory independent body created by the Law Commissions Act 1965, suggested that the present safeguards are not meaningful for people living with disabilities, people who are in supported living and older people and their families. This has caused local councils and the NHS to struggle to meet their obligations under the law.

The DoLS were intended to provide a process to ensure that people who lack the capacity to consent to their care are deprived of their liberty, but this is only to be permitted if it is in their best interests. To check the individual’s capacity, assessments of the individual are made independently by the hospital or care home, and decisions can be challenged by appeal to the Court of Protection.

However, since a Supreme Court judgment broadened the Deprivation of Liberty Safeguards, it has placed increasing burdens on local authorities and health and social care practitioners. More importantly the Commission has outlined that the standards fail to protect the rights of people living with disabilities, older people and their families.

The Commission’s consultation concluded that the DoLS are 'deeply flawed' and must be adjusted, proposing that it should be replaced by a new system of ‘Protective Care’. This would provide a person under the new system with an advocate to represent their views and wishes, as well as ensure that safeguards are extended to people living in supported environments or at home, as well as those in other hospital settings and palliative care. In addition, capacity assessments under the current system are made by Best Interest Assessors. The commission has outlined that determining whether or not someone has capacity to make a decision has significant consequences.

A person assessed as lacking capacity may be denied their rights. Conversely, a person who lacks capacity to make specific decisions could be put at significant risk if they are making decisions that they do not really understand.

As a result the Commission has called for views on whether this pivotal role should be given professional status as Approved Mental Capacity Professionals and be regulated in the same way as other care professions.

Under the Commission’s provisional proposals, Approved Mental Capacity Professionals would be able to authorise individual care plans and place conditions on the provision of care and treatment.

The consultation is open until 2 November 2015 with the final report of the recommendations and a draft Bill expected in 2016.

To have your say in the consultation on the proposals go to http://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/