The Law Commission has delivered its final recommendations to ministers on replacing the Deprivation of Liberty Safeguards, after concluding the current system is “in crisis”.
The government asked the commission to review the DoLS amid concerns councils were failing to cope with a tenfold rise in deprivation of liberty cases triggered by the Supreme Court’s landmark ‘Cheshire West’ ruling in March 2014.
The commission has now published its final report and draft legislation for a new system to authorise care placements involving deprivation of liberty for people lacking capacity. The commission believes its proposed Liberty Protection Safeguards (LPS) scheme will be less onerous than the DoLS while still offering human rights protections.
The LPS would cover a broader group of people than the DoLS, which is restricted to placements in care homes and hospitals.
Firstly, the LPS would apply to any setting that might give rise to a deprivation of liberty, including shared lives schemes and supported living. Secondly, it would also cover 16 and 17-year-olds, whereas the DoLs only applies to over 18s.
While the scope of the LPS is broader than the DoLS, it would involve a two-tier system of protections whereas the DoLS provides the same checks to all cases.
Under the current system, every DoLS case is coordinated by best interests assessors (BIAs), typically specially trained social workers. The BIAs must set up six assessments, the most significant of which is a ‘best interests assessment’.
Under the LPS, the BIA role would be revised to a new ‘Approved Mental Capacity Professional’ (AMCP) role and the requirement for a best interests assessment in every case is dropped. AMCPs would only be focused only on more “serious” cases where care arrangements are contrary to the person’s wishes.
When a potential deprivation of liberty is identified, the responsible body, in social care cases a local authority, would be required to arrange a capacity assessment, a medical assessment and a check that the proposed care placement is ‘necessary and proportionate’ (in effect the latter replaces the ‘best interests’ assessment). The council would be required to consult with friends or family of the person.
Every case would then be checked by an ‘independent reviewer’, an employee of the responsible body who is not involved in the person’s care.
If the reviewer felt the conditions for an authorisation are met then they could approve it. However, if there are concerns the proposed placement is against the person’s wishes then the case would be referred to an AMCP. The AMCP would be required to meet with the person and scrutinise the assessments carried out before determining whether to authorise the placement or not.
“The Approved Mental Capacity Professional would be expected to consider matters using their own professional judgment rather than simply to consider whether those conducting the assessments could reasonably reach the conclusions that they did. The obligations upon them are therefore more onerous than upon the independent reviewer,” the commission’s report said.
The commission said its system would ensure “greater prominence” is given to the person’s human rights during the care planning stages and help cut “unnecessary duplication” by taking previous assessments into account.
It said the widespread reports of case backlogs and breached statutory timescales since the Cheshire West ruling meant that any notion the DoLS could be “patched up to cope” was not sustainable.
“Article 5 rights must be practical and effective. It is not acceptable to continue with the current system where many people’s rights have become theoretical and illusory,” the report said.
The commission also recommended wider reforms to improve decision-making across the Mental Capacity Act, not just in cases involving deprivation of liberty. The MCA proposals would place a requirement on decision-makers to place greater weight on the person’s wishes and feelings when making decision under the act and confirm in writing that they had complied with the act.
It is now up to the government to decide whether to take the commission’s recommendations forward.
Law Commissioner Nicolas Paines QC said: “It’s not right that people with dementia and learning disabilities are being denied their freedoms unlawfully. There are unnecessary costs and backlogs at every turn, and all too often family members are left without the support they need.
“The Deprivation of Liberty Safeguards were designed at a time when considerably fewer people were considered deprived of their liberty. Now they are failing those they were set up to protect. The current system needs to be scrapped and replaced right away.”