The best interests assessor role could be axed, and independent oversight of deprivation of liberty cases scrapped, under proposals being developed by the Law Commission.
In a statement published today, the commission has rolled back on a previous commitment that the BIA role would “be central” to a proposed replacement for the Deprivation of Liberty Safeguards (DoLS) that is being developed for ministers.
The commission’s draft scheme, published last year, recommended developing a strengthened version of the BIA role, provisionally named the ‘approved mental capacity professional’ (AMCP).
But today’s update opens the door for the BIA role, which provides independent scrutiny of care placements considered to be potential deprivations of liberty, to be radically pared back or even scrapped entirely.
The only commitment the commission makes is to “considering whether” a limited group of people should receive additional independent oversight of their care from an AMCP. At present every care placement within the DoLS receives independent oversight. This is coordinated by BIAs.
The move would leave it for local authority and NHS commissioners to determine whether a person had been deprived of their liberty in care that those commissioners had arranged. The commissioners would have to produce evidence, including a capacity assessment and arrange advocacy.
The proposals would give anyone deprived of their liberty the right to seek reviews or bring a legal challenge against the deprivation. However, the prospect of losing BIAs will spark concerns that key human rights protections for vulnerable groups will be weakened given the role currently provides independent scrutiny of care arrangements amounting to deprivation of liberty.
The news also comes months after the AMCP proposals received high-profile backing from the chief social worker for adults, Lyn Romeo. She said the position represented an opportunity for social workers to further their “vital work” in this area of care and “be properly recognised for this contribution”.
Ministers ordered the Law Commission to draft a replacement for DoLS after the March 2014 landmark ‘Cheshire West’ ruling triggered a ten-fold rise in cases. The flood of referrals has led to widespread breaches of statutory duties, with councils unable to keep up with demand and racking up huge case backlogs.
A Law Commission impact assessment found that fully funding the DoLS so that services could comply with the Supreme Court ruling would cost £1.5bn a year, compared to the £117m currently spent on the system. The commission said its original draft proposals would cost an average of £533m per year to run.
The government issued strong criticism of the commission’s draft proposals and raised concerns they were overly bureaucratic and costly.
The scale of changes to the commission’s scheme signalled in today’s update suggest the government’s pressure to cut costs has had an impact.
In its interim conclusions the commission said it rejected the notion “that safeguards should be reduced to the bare minimum or that we should not consider any reforms that may generate additional costs”. However, it acknowledged “financial pressures weighed heavily on the minds of consultees” and set out a “more streamlined” scheme that marks a significantly stripped back version of the original proposals.
The changes include:
- A scaling back of the original scheme from one that focused on wider human rights safeguards to one solely focused on deprivation of liberty.
- Restricting additional oversight from AMCP or BIA to a defined group, rather than all people who met the deprivation of liberty threshold, or scrapping this altogether.
- If the AMCP or BIA role is maintained, restricting it to agreeing or not agreeing to a proposed deprivation of liberty. The role would not extend to ongoing reviews and the monitoring of cases.
- The removal of a baseline tier of safeguards, known as ‘supportive care’, that were designed to protect Article 8 rights (the right to a private and family life).
- A shift in the responsibility for establishing the case for a deprivation of liberty from care providers to commissioners (local authority or the NHS).
- Provisions for local authorities to rely on existing assessments (where appropriate) when considering a deprivation of liberty.
- Scrapping an original proposal for a separate scheme for authorising deprivation of liberty in hospitals.
- Dropping a proposal to create new mechanism in the Mental Health Act to cater for people lacking capacity who are compliant with their treatment.
- Considering whether an original proposal to offer people first-tier tribunal rights should be dropped.
The commission said it would look to recommend amendments to the Mental Capacity Act so that it could maintain, “as much as possible”, the article 8 protections removed from the scheme proposals. Amending the MCA would be aimed at ensuring there is proper consideration, in advance of decisions to remove any individual from their home and place them in institutional care.
The commission will make final recommendations to ministers in December.
The Law Commission is seeking views on what the DoLS replacement scheme should be called. A number of respondents to the consultation were critical of the proposed name ‘protective care’. The most popular suggestions were ‘liberty safeguards’ or ‘capacity safeguards’. You can email your suggestions to the commission.