Government brings forward deadline for deprivation of liberty reform plans

The government has brought forward the deadline for the Law Commission to finalise proposals for a legal framework to replace the Deprivation of Liberty Safeguards (Dols).

An accelerated timetable announced by care minister Alistair Burt this afternoon will see the commission publish draft legislation and detailed proposals for a new deprivation of liberty scheme by the end of 2016. The project was originally due to report in summer 2017.

The Law Commission is reviewing both the Dols scheme – which covers care homes and hospitals – and the Court of Protection process for authorising deprivation of liberty in community placements such as supported living. The new framework is expected to cover both community and residential care settings.

The commission will put an initial set of draft proposals for the new scheme out to consultation on 7 July. The consultation will last four months.

‘A sustainable solution’

The government ordered the Law Commission review amid concerns from practitioners that the system as it stands was overly-bureaucratic and not fit-for-purpose.

Those fears have intensified in the wake of the landmark ‘Cheshire West’ Supreme Court ruling last March. The ruling triggered a ten-fold rise in Dols caseloads. And Community Care revealed today that the ruling has meant there are many people who are being deprived of their liberty in community placements unlawfully because councils have made relatively few applications to the Court of Protection to gain authorisation.  

Burt said the safeguards should be about “people, not paperwork” and said he’d asked the Law Commission to bring forward their work in order to find a sustainable long-term solution to the current pressures.

“I want to thank all the dedication and professionalism of staff working in local authorities and in health and care providers who are helping to make sure that thousands more individuals are having the conditions of their care independently scrutinised to make sure they are given dignity and respect,” he said.

Ray James, president of the Association of Directors of Adult Social Services, welcomed the government’s announcement.

“[The minister] is absolutely right to stress that Dols are not about paperwork or red tape, but about people and the protection of their liberty. It is imperative that government now fully funds the additional financial burdens placed on councils who are dealing with a tenfold increase in applications,” he said.

First step in the process

While news that the Law Commission project is being sped up is likely to be welcomed by under pressure care teams, the commission’s draft bill is only the first step in what could still prove a lengthy legal and parliamentary process.

Once the government has considered the commission’s draft bill it would have to publish its own legislation. The government’s bill would have to be passed by Parliament and then considerable time would have to be spent preparing the social care and legal systems to implement the new deprivation of liberty framework.

Sources indicated that even with the accelerated timetable for the Law Commission’s work, legislation is likely to reach Parliament in 2017 at the earliest.

Labour MP raises concerns

The government’s announcement of the accelerated timetable for the Law Commission’s work came after Labour MP Ann Coffey contacted ministers to call for an urgent review the Dols, arguing that the system is not fit-for-purpose.

In a parliamentary debate held this afternoon, Coffey, the MP for Stockport and a former social worker, raised concerns that “unintended consequences” linked to the Dols are also causing distress to relatives. She called on the chief coroner to scrap guidance issued last year that all deaths of people subject to Dols are deemed to involve ‘state detention’ and should therefore trigger a coroner’s investigation.

The government should also consider changing the law to make it clear not all deaths of people under Dols need an inquest, Coffey said.

In response to the concerns raised by Coffey, Burt said he would write to the chief coroner to stress the importance of minimising the distress to relatives. The minister also said the DH would issue further guidance on deaths of people who are subject to Dols in coming weeks.

In a statement issued after the debate, Coffey said: “I welcome the minister’s decision to bring the Law Commission inquiry into Dols forward. This is an urgent problem. I am also extremely pleased that he will be writing to the chief coroner to stress the importance of minimising distress to relatives”.

She added: “I hope the chief coroner will agree to review his guidance on ‘state detention’ and the need for automatic inquests. If he would make it clear that local coroners have got discretion then we would see a more proportionate response and relieve some of the stress on grieving relatives.”