The government feels the Law Commission’s proposals for a legal framework to replace the deprivation of liberty safeguards could be “unnecessarily” complex and costly to deliver.
The Department of Health’s response to a consultation on the proposals raised concerns that parts of the Law Commission scheme failed to meet ‘three tests’ – that any system should be user-friendly, a good use of public money and deliver ‘real’ benefits to people lacking capacity to consent to their care arrangements.
Frontline staff have said reforms to the current system are badly needed as the pressure on deprivation of liberty caseloads is unsustainable.
The Law Commission’s project has long been seen as the best hope of an improved system. However, the government’s critical response to the consultation suggests that unless substantial changes are made, ministers won’t back the commission’s final proposals. The situation raises questions over whether legislative change will happen. Under the current timetable, the commission is due to publish a draft parliamentary bill setting out its final proposals next year, and the government will decide whether to adopt, reject or amend this.
The DH response expressed fears that some of the Law Commission’s proposals would create more legislation to improve practice around existing laws, such as the Care Act and Mental Capacity Act. For these issues, officials believe working with professionals to achieve “cultural” change may be a better approach.
Signalling a wish for the commission to come up with a simpler, cheaper system in the final proposals put to ministers in December 2016, the DH said: “We are concerned that the proposed system is unnecessarily complex”.
Any revisions to the proposals should also be ‘simulation tested’ with professionals, service users and families to make sure they work in practice, it added.
Why reform is needed
The government asked the Law Commission to review the legal frameworks for authorising deprivation of liberty in the wake of the Supreme Court’s landmark ‘Cheshire West’ ruling.
Handed down in March 2014, the ruling effectively lowered the threshold for what constitutes deprivation of liberty in care. It triggered a ten-fold rise in cases needing legal authorisation.
Under the current system, any deprivation of liberty in a care home or hospital must be authorised under the deprivation of liberty safeguards. This is overseen by local authorities. Deprivation of liberty in community placements, including supported living, must be authorised by the Court of Protection.
The surge of cases triggered by the Cheshire West ruling has led to widespread unlawful practice and a growing pressure for reform of deprivation of liberty laws.
The cost of the scheme
The proposals drawn up by the Law Commission would cost £533m a year to implement, according to an impact assessment. That’s more than the estimated £118m a year current practice is costing but less than the £1.6bn annual cost of fully complying with the Cheshire West judgment.
The Law Commission’s proposed umbrella framework, provisionally titled ‘protective care’, covers care homes, hospitals, supported living, shared lives and domestic settings. The nature and extent of the safeguards offered by the system vary according to the care setting and level of restrictions proposed.
The first tier, known as ‘supportive care’, would place a duty on local authorities to offer baseline preventive safeguards. This would include the appointment of an independent advocate or appropriate person to ensure a person has access to the relevant review or appeals process.
The DH questioned whether the ‘supportive care’ proposals would unnecessarily duplicate rights that people should already have under the Care Act or Mental Capacity Act. It also expressed concerns over the “imposition of advocacy”, arguing support from family or friends may be more beneficial in some cases.
The second tier, known as the ‘restrictive care and treatment scheme’, would kick in when people are subject to “sufficiently intrusive or restrictive care”. Eligibility for the scheme would be defined by an illustrative list.
The scheme would have an extra layer of safeguards, including strengthened rights of appeal through a tribunal system. It would also provide the legal authority to deprive a person of their liberty. In this regard, it is the direct replacement for the Dols, but, unlike the Dols, would also apply in community settings.
The DH backed the need for any Dols replacement to cover community settings but questioned whether the use of an ‘illustrative list’ to determine eligibility could see people fall through the gaps. It also raised “significant concerns” over the proposal to make automatic tribunal referrals arguing “in many cases individuals might find such an escalation distressful” and discussion or supported mediation could be more appropriate.
Enhanced BIA role
The Law Commission recommended the ‘restrictive care and treatment scheme’ should be overseen by a new approved mental capacity professional (AMCP) role. This would be a revised and expanded version of the current best interests assessor role. AMCPs would oversee restrictive care and treatment cases but could delegate best interests assessments to professionals involved in the person’s care.
Lyn Romeo, the chief social worker for adults, has indicated her strong support for the AMCP proposal and has said social workers would be best placed to take it on.
The DH’s response did not state whether it backed the AMCP role or not. But it said: “The concept of providing more scope for professionals already involved in the care of the individual to perform a best interests assessment (through delegation by and under the supervision of an AMCP) could be a sensible and proportionate response.”
The government remained “committed” to the Law Commission’s work but would wait for final proposals before deciding whether “legislative change is the best way forward”, the response added.