By Law Commissioner for Public Law Nicholas Paines QC
The Law Commission is a statutory, independent body set up to reform the law. We want to ensure that the law is as fair, modern, simple and cost-effective as possible. Three years ago, the Department of Health came to us with a problem.
A few months before, a Supreme Court decision called Cheshire West had had a massive impact on what is called the Deprivation of Liberty Safeguards (DoLS).
Sometimes people with conditions like dementia or learning disabilities need to be confined or made subject to restrictions in a place like a care home when it is in their best interests. For example, a person with dementia may be kept in their care home to prevent them from wandering off, which could put them in danger.
This is known as a deprivation of liberty and an authorisation process – the DoLS – is meant to ensure checks are in place so this is done lawfully.
But Cheshire West changed the definition of who was considered to be deprived of their liberty. Now anyone living in a hospital, care home and even a private or family setting who is under constant supervision and not free to leave is considered deprived of their liberty; they must be given legal safeguards.
As a result, applications to use the DoLS have rocketed. Official figures show that hospitals and care homes in England made 195,840 DoLS applications in 2015-16 – more than 14 times the year before.
Understandably health and social care services have been struggling to cope because of the additional administrative burden they bring. This means that DoLS referrals are being left unassessed and statutory time-scales are being routinely breached.
In 2015-16 only 43% of referrals were completed in the year. Of those only 29% were completed within the 21 day time-limit set in regulations. This is clearly unacceptable and the Department of Health quickly recognised the issue. They asked us at the Law Commission to review the legal framework and recommend suitable new protections.
So, for the past three years we’ve been working hard to find a solution. We met many of you in the care sector of the course of our open public consultation and as a result received nearly 600 detailed, thoughtful submissions outlining concerns.
Taking these on board, we have now published our recommendations. We are clear that DoLS are failing those they were set up to protect. It’s not right that people with dementia and learning disabilities are being denied their protections unlawfully because of a law unfit for purpose. The current system needs to be scrapped and replaced right away.
We are recommending replacing the law with a new scheme, called the Liberty Protection Safeguards. We estimate that the Liberty Protection Safeguards would cost £236 million a year in total – a saving of £10 million annually on current costs. But the savings could be much more.
If the current inefficient system was used in every case that the law requires we think this could cost up to £2.2 billion per year.
The new Liberty Protection Safeguards not only save money, but will also allow the backlog of cases to be cleared by cutting unnecessary duplication. There would be more use of previous or equivalent assessments, a streamlined signing off process for authorisations that cover more than one setting, and scope to allow renewals for those with long-term conditions. There would also be a more straightforward version of the best interests assessment which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised.
This is alongside the protections for patients like enhanced rights to advocacy and periodic checks on the care or treatment arrangements. The new Liberty Protection Safeguards would also require a documented process before certain decisions are made – including moving a person from their home to a care home.
We have now made our independent views known to government. It is now up to them to decide whether to act. But since our creation in 1965 we have a pretty good track record – with over 2/3 of our recommendations being implemented in whole or in part.
It is clear that there are enormous pressures on health and adult social care at the moment. And with an ageing population those pressures aren’t going to go away. But our reforms will not only mean that everyone is given the protections they need, but could also deliver a saving to councils and the taxpayer.