Reforming deprivation of liberty: the key debates social workers need to know about

The Law Commission’s consultation on deprivation of liberty law reform closes on 2 November. Social workers often complain that the current systems, especially the Deprivation of Liberty Safeguards (Dols), are not fit for purpose. Between now and the close of the consultation you’ve a chance to influence the replacement scheme’s design.

So what’s the Law Commission proposing? In very broad terms the consultation recommends a tiered system of safeguards covering hospitals, care home, supported living, shared lives and domestic accommodation. The nature and extent of the safeguards vary according to the particular setting and the restrictiveness of a person’s care arrangements. A summary of the scheme can be read here.

The full paper on the commission’s proposals stretches to 230 pages. But as we approach the final week of consultation, which measures have generated most debate? Below we’ve pulled out four of the most contentious proposals and the arguments surrounding them. To respond to any of the issues raised, or the wider proposals, email the Law Commission team at tim.spencer-lane@lawcommission.gov.uk.

1. Is the Approved Mental Capacity Professional role the way forward?

The proposal: Essentially a beefed-up version of the current best interests assessor (BIA) role, the AMCP would oversee the ‘restrictive care and treatment’ tier of safeguards (this is the proposed replacement for the Dols).

AMCPs would operate as independent decision-makers on behalf of the local authority. As well as having overall responsibility for assessing a person’s placement against the criteria for ‘restrictive care and treatment’ safeguards, they would also have a duty to ensure a person’s care arrangements complied with the Care Act and Mental Capacity Act.

In another new power, AMCPs would have the ability to directly issue conditions for a person’s ‘restrictive care’ being authorised. Under the current system, BIAs can only recommend conditions and these must be signed off by a supervisory body (usually a local authority). The Law Commission proposes dismantling the supervisory body system.

Potential benefits: Some social workers feel the AMCP role could be a “lifeline” for the profession. The proposal also has the backing of Lyn Romeo, the chief social worker for adults. Supporters of the AMCP proposal view it as an opportunity to improve the application of the Mental Capacity Act, raise the status of the BIA role, and ensure human rights are at the heart of care arrangements. The Law Commission hasn’t specified if the AMCP role would be the sole preserve of social workers. It’s likely other professional groups could also take on the role (as is currently the case for BIAs).

Concerns: One concern is that the AMCP role hands too much responsibility to a single professional. Does the extension of the BIA role being proposed go too far? Linked to this is a worry that the AMCP role risks blurring the line between independent assessor, decision maker and case manager. If an AMCP starts to become responsible for parts of a person’s ongoing care arrangements, do they lose their independence? Another issue relates to the dismantling of the supervisory body system. Some BIAs suggest having supervisory body sign-off can be a useful tool in backing up Dols authorisations if, for example, senior medics or commissioners object to them.

Key consultation paper sections: Summary on p35-36. More detail in chapter 7 (pp.61-108).

2. Is this the right approach to deprivation of liberty in hospital?

The proposal: A person may be deprived of liberty for up to 28 days in a hospital setting based on the report of a doctor. The hospital managers would be the detaining authority and must appoint a responsible clinician to take charge of the person’s care, as well as an advocate and appropriate person. Any authorisations for a deprivation of liberty beyond the 28 day period would require the agreement of an AMCP.

Potential benefits: Supporters of this proposal argue it is better-suited to the pace of acute hospitals than the current system. At present any deprivation of liberty in hospital must be authorised under the Dols by the relevant supervisory body. The process involves six assessments and is coordinated by a BIA. In practice, Dols authorisations often end up abandoned because people are discharged before assessments are completed. Does the Law Commission proposal offer a more flexible solution?

Concerns: There are worries the proposal would see people deprived of their liberty by health professionals without any ‘check and balance’ from social care professionals, who tend to have more expertise in the Mental Capacity Act and Dols. Opinion is also split over the 28 day period for authorisations. Many professionals (often from social care background) feel 28 days is too long but others (often health professionals) argue it should be extended further.

Key consultation paper sections: Summary on p37. More detail in chapter 8 (pp.109-113).

3. Is this the right approach to handling deprivation of liberty at home?

The proposal: Where a deprivation of liberty is proposed as part of care offered in a domestic setting, the safeguards of the restrictive care and treatment scheme should apply. An AMCP would be required to authorise the deprivation of liberty or seek alternative solutions that would remove the deprivation of liberty. In some cases the matter may needed to be settled by the court.

Potential benefits: Supporters of this proposal feel it offers a more straightforward way of handling deprivation of liberty in domestic settings. The Law Commission says that the current system, where every case of deprivation of liberty in a domestic setting should go to court, is unnecessarily onerous for public authorities and potentially distressing for individuals and families.

Concerns: Practitioners have raised concerns that this proposal could need new powers of entry to make it workable. This is linked to question marks over how an AMCP could check any potential deprivation of liberty if a person refused access to their home. Would AMCPs get new rights of access or would they always be required to apply to the court? There are also worries over how deprivation of liberty at home would be regulated and monitored under the proposed system.

Some carers have also raised concerns that, in providing a more straightforward way of authorising deprivation of liberty at home, the proposals could lead to authorisations being used as the first port of call, rather than a last resort. They’d rather that a statutory duty was introduced so that councils always had to consider how to provide support services to end the deprivation of liberty where possible.

Key consultation paper sections: Summary on p29-32. More detail in chapter 7 (p.98-99).

4. Should 16 and 17 year-olds be covered by the scheme?

The proposal: The present Dols scheme only covers people aged 18 and over, whereas the Mental Capacity Act applies to those aged 16 and over. The Law Commission proposes ending this disparity by ensuring the new system for authorising deprivation of liberty applies from the age of 16 upwards, a move that could bring many more children’s home placements into the scheme.

Potential benefits: Supporters of this move say there’s no reason 16 and 17 year-olds should be denied the same safeguards as people over 18.

Concerns: Some children’s practitioners have raised concerns that the proposal won’t work in practice as it would clash with elements of the Children Act.

Key consultation paper sections: Details on pp 181-183