By Law Commissioner for Public Law Nicholas Paines QC
The Law Commission is a statutory, independent body set up to reform the law. We want to ensure that the law is as fair, modern, simple and cost-effective as possible. Three years ago, the Department of Health came to us with a problem.
A few months before, a Supreme Court decision called Cheshire West had had a massive impact on what is called the Deprivation of Liberty Safeguards (DoLS).
Sometimes people with conditions like dementia or learning disabilities need to be confined or made subject to restrictions in a place like a care home when it is in their best interests. For example, a person with dementia may be kept in their care home to prevent them from wandering off, which could put them in danger.
This is known as a deprivation of liberty and an authorisation process – the DoLS – is meant to ensure checks are in place so this is done lawfully.
But Cheshire West changed the definition of who was considered to be deprived of their liberty. Now anyone living in a hospital, care home and even a private or family setting who is under constant supervision and not free to leave is considered deprived of their liberty; they must be given legal safeguards.
As a result, applications to use the DoLS have rocketed. Official figures show that hospitals and care homes in England made 195,840 DoLS applications in 2015-16 – more than 14 times the year before.
Understandably health and social care services have been struggling to cope because of the additional administrative burden they bring. This means that DoLS referrals are being left unassessed and statutory time-scales are being routinely breached.
In 2015-16 only 43% of referrals were completed in the year. Of those only 29% were completed within the 21 day time-limit set in regulations. This is clearly unacceptable and the Department of Health quickly recognised the issue. They asked us at the Law Commission to review the legal framework and recommend suitable new protections.
So, for the past three years we’ve been working hard to find a solution. We met many of you in the care sector of the course of our open public consultation and as a result received nearly 600 detailed, thoughtful submissions outlining concerns.
Taking these on board, we have now published our recommendations. We are clear that DoLS are failing those they were set up to protect. It’s not right that people with dementia and learning disabilities are being denied their protections unlawfully because of a law unfit for purpose. The current system needs to be scrapped and replaced right away.
We are recommending replacing the law with a new scheme, called the Liberty Protection Safeguards. We estimate that the Liberty Protection Safeguards would cost £236 million a year in total – a saving of £10 million annually on current costs. But the savings could be much more.
If the current inefficient system was used in every case that the law requires we think this could cost up to £2.2 billion per year.
The new Liberty Protection Safeguards not only save money, but will also allow the backlog of cases to be cleared by cutting unnecessary duplication. There would be more use of previous or equivalent assessments, a streamlined signing off process for authorisations that cover more than one setting, and scope to allow renewals for those with long-term conditions. There would also be a more straightforward version of the best interests assessment which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised.
This is alongside the protections for patients like enhanced rights to advocacy and periodic checks on the care or treatment arrangements. The new Liberty Protection Safeguards would also require a documented process before certain decisions are made – including moving a person from their home to a care home.
We have now made our independent views known to government. It is now up to them to decide whether to act. But since our creation in 1965 we have a pretty good track record – with over 2/3 of our recommendations being implemented in whole or in part.
It is clear that there are enormous pressures on health and adult social care at the moment. And with an ageing population those pressures aren’t going to go away. But our reforms will not only mean that everyone is given the protections they need, but could also deliver a saving to councils and the taxpayer.
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Why not call it Protection of Liberty Safeguards. Which makes more literal sense and offers PoLS as an acronym.
Bob Skinnet
I quite like LiPS
I do remember when the Mental Capacity Act and DoLS were first being discussed pointing out that these safeguards would apply to a heck of a lot of people (discussion with Vern Pitt of Community Care). If I spotted it, I wonder why those implementing it don’t seem to have. My concern at that time was doctors sweeping into a ward and saying residential care for that one, that one, and that one, with no informed discussion of alternatives and care at home or consideration of the wishes of the individual. The hospital social work team would then have to argue with families who would say their mum or dad needed residential care because the doctor had said so. Of course, if they were self-funding we had little say in the matter and I am sure some people went into residential care and were kept there against their wishes, and certainly were not making an informed choice. My view was that all the people thus admitted should have the protection of DoLS, and of course that our medical chums should stop doing this, so people weren’t admitted unnecessarily in the first place. I hope the new system works better but still ensures that people’s rights to make informed choices about where they live are respected.
Finally…a proposal which has a high likelihood to work in practice.
Too much public money has been wasted on paying for independent BIA’s when that money ought to have gone to improving the care for people DOLS was allegedly protecting.
For the Independent BIA’s the golden goose has laid it’s final egg…
But presumably not for the doctors carrying out the medical assessment – plus ca change.
good point. That was why I stopped being a BIA some time ago. That, and the bunch of sanctimonious, self righteous twits I had to work with……………
sadly Graham you are correct. the doctors I met as a bia were bigger twits than the BIAs
The DoLS legislation was Labour’s fix for Bournewood. The ECHR had ruled that there was no lawful process by which HL had been deprived of his liberty. But instead of asking “How can we design and deliver services that prevent such circumstances arising?” the chosen solution was to create that lawful – but purely administrative – process in order to perpetuate improper incarceration. If this new scheme is aimed solely at a further fix to process then it too will fail and deservedly so.
Just about every fix I can remember in many years of social work practice, with adults and children, has involved implementing cumbersome and expensive bureaucratic and legal processes. This seems to be considered more important (and cheaper) than spending money on increasing the intensity and quality of care and care management, which really protects people. Could this be because the august bodies that develop these fixes contain a preponderance of lawyers and bureaucrats?
My partner has vascular dementia and is in a care home where He is very unhappy.The social worker is unwilling to allow him to come home although he is dreadfully depressed in the home.
I’d like to see the detail on this before forming an opinion on whether it is an improvement, or simply cheap.
This article is a fluffy brand sell, loaded to create a positive response but very thin on detail.
The documented process for example, what is it, who does it, what input do family and client have, how much for the MDT is involved..
Focus appears to be on cost saving by shortcutting process. Client centred decision making to safeguard human rights would be the preferred focus for professionals also responsible for wellbeing of clients.
More details please.
I think a lot more consideration should be given to the person in care not what is easiest for the social worker.
It is interesting that no one , not even the most ardent BIAs, is writing here in support of the current arrangements.
Yes scap DOLS. It was never a thought through process. Knee jerk. I have been a SW since 2000, on and off, and I am able to stomach, how we are ” protecting people” Sometime we do an outstanding job, and we really do identify inhumane and tricky situations, but we also are sometinmes leagally adhearing to guideline/polices, that ethincally we may not always agree with. Gone are the days where people are allowed to breath. At times though MCA protect the most vulnerable of folk.
Meant unable to stomach…