Government rejects call to scrap Deprivation of Liberty Safeguards

Ministers have rejected a call from peers to scrap the Deprivation of Liberty Safeguards (Dols), a government report confirms.

A House of Lords select committee report published in March of this year described Dols as “not fit for purpose” and “poorly drafted and overly complex”. The committee said Dols should be replaced with a system that was simpler and more grounded in the principles of the Mental Capacity Act.

The government’s response, published today, conceded that improvements were needed but concluded that there was no “fundamental flaw” in the legislative framework underpinning the Dols system. The key block to Dols being successfully implemented was a “lack of awareness and understanding” of the system, the government said.

“This lack of awareness and understanding is demonstrated by the worrying view in some places that Dols is somehow a “negative” tool used by unscrupulous staff as means to justify unnecessary unnecessary control over the freeom of individuals under their care,” the response said.

“Others have been known to see a Dols authorisation as a mark against them – evidence that they have not successfully applied the MCA principle of least restrictive care. Both beliefs are false”

The government response set out a series of actions to make the current system “work better in the short to medium term”. These included:

• The Association of Directors of Adult Social Services (Adass) will lead a “time-limited” task group to help councils work through the implications of a Supreme Court judgement – in the cases of P v Cheshire West and P&Q v Surrey – that effectively lowered the threshold for deprivation of liberty in care. The group will report by the end of August 2014. Councils are estimating deprivation of liberty cases will rise ten-fold this year due to the ruling.
• The Adass review could lead to minor changes to the Dols code of practice, which professionals are under a duty to have regard to, following consultation.
• The government will commission a project to streamline the Dols forms, in recognition that professionals often find them “unnecessarily bureaucratic and cumbersome”. The project will complete by the end of November 2014.
• Up-to-date guidance on deprivation of liberty case law will be published by the end of 2014 in a bid to help frontline practitioners.
• A new chapter will be included in the revised Mental Health Act Code of Practice to address confusion over the interface between the Mental Health Act and the MCA (including Dols).

The House of Lords committee recommended that a replacement for Dols should extend to supported living. The Dols only apply to hospitals and care home settings. Applications for deprivation of liberty in supported living must be made directly to the Court of Protection.

The government’s response acknowledges a “pressing” need to improve the process for deprivation of liberty in supported living, particularly as the strain on the Court of Protection was likely to increase as a result of the Supreme Court ruling and the drive in government policy to shift more care to community settings.

“This [community care] policy, together with the widened test provided by the Supreme Court as to what constitutes a deprivation of liberty means, in our view, that it may be unsustainable, too resource intensive and most importantly, not appropriate from a service user’s point of view, to refer all supported living cases to the Court of Protection,” the response said.

However, the government said the system of court authorisations will continue for the foreseeable future. To address the issue in the longer term, the government has asked the Law Commission to consult on and draft a new legal framework to allow for best interests deprivation of liberty in supported living agreements. The Law Commission will be asked if any “learning points” from its work on supported living can be applied to the Dols system. Its work will lead to a more thoroughgoing review of the Dols code of practice.

“This work will not complete for a few years; hence the importance that the current system is fully implemented without delay,” the government’s response said.

The Court of Protection is currently considering how it can streamline its process for handling deprivation of liberty applications while remaining compliant with European human rights law.

Roger Hargreaves, Dols lead for the Mental Health Alliance, said asking the Law Commission to explore issues around supported living was “a step in the right direction” but significant concerns remained over the government’s response to the Lords committee findings.

“The government response acknowledges that it will take ‘a few years’ for the Law Commission even to draft legislation on supported living. In the meantime, according to last week’s estimates from Adass, 18,000 cases a year, plus reviews, will need to be channelled through the Court of Protection.

“This response…does not seem to reflect the immediate concern that a tenfold increase in applications for Dols may make the system unworkable without major diversion of resources from other priorities.”

Hargreaves added: “Overall, the response still tends to perpetuate the defensive, complacent attitude which has characterised government responses to criticisms of Dols since the Implementation Team was disbanded in 2011, and which was clearly recognised by both the House of Lords and the House of Commons review committees.

“Whilst it is quite right to point out the soundness of the intention behind the Dols scheme and the considerable benefits which it has brought to a great many vulnerable people who lack capacity, it’s quite ludicrous, for instance, and extremely patronising to staff in the field, to suggest that the “apparent complexity” of Dols is an inevitable consequence of its function.

“The fact is that it is an appalling piece of legal drafting written in obscure language completely out of keeping with the main MCA, and which is several times longer and far more labyrinthine than is necessary to achieve its relatively-simple purpose. The Department of Health would have a great deal more credibility if it were to admit that fact, even if resource constraints make it impracticable to completely replace Dols in the short term.”

A government spokesperson said: “It is unacceptable to unlawfully deprive vulnerable people of their rights. We are determined to make sure the Mental Capacity Act is used properly to protect everyone receiving care and support. The House of Lords’ Inquiry highlighted cases where people have been unlawfully deprived of their rights, which is why we are working with professionals to make sure the Act is used properly.”