The government has agreed to legislate to replace the Deprivation of Liberty Safeguards (DoLS) with a new system to authorise the confinement of people in care arrangements they lack the capacity to consent to, when parliamentary time allows.
In a parliamentary statement today, social care minister Caroline Dinenage said that the government had broadly accepted a replacement for DoLS – known as the Liberty Protection Safeguards – proposed by the Law Commission following a review of the law in this area commissioned by ministers, which reported last year.
In its formal response to the Law Commission’s proposals, the government accepted (or accepted in principle) 42 of 47 recommendations, with only one rejected – the proposed statutory codification of the law in relation to mental capacity and children – and four others deferred for consideration as part of the separate independent review of the Mental Health Act.
However, legislation to replace DoLS is not imminent. Dinenage said that ministers “want to ensure that Liberty Protection Safeguards fit with the conditions and future direction of the health and social care sector, so we will continue to work through the detail of the recommendations and engage further with stakeholders particularly on implementation. We will bring forward legislation to implement the model when parliamentary time allows”.
Why the DoLS is being scrapped
The Law Commission review was the government’s central response to two events in March 2014: the Supreme Court’s Cheshire West judgment, which effectively lowered the threshold for what constituted a deprivation of liberty in law, triggering a massive hike in DoLS cases; and a damning verdict that the DoLS were not fit for purpose delivered by a House of Lords committee set up to review the Mental Capacity Act.
The committee said the system, under which hospitals and care homes apply to local authorities or Welsh health boards to authorise deprivations, was over-bureaucratic and left many thousands of people unlawfully detained in care settings, a view echoed by the Law Commission when it published its proposals last year.
As with DoLS, the LPS is designed to fulfil the UK’s obligations (in relation to England and Wales) to have a system of safeguards for people who need to be deprived of their liberty to receive care and treatment but lack the capacity to consent, which complies with article 5 of the European Convention on Human Rights.
What the commission proposed
The commission’s proposed replacement differs from DoLS in several significant respects:
- The Liberty Protection Safeguards (LPS) would apply to deprivations of liberty in all settings, not just care homes and hospitals, as with DoLS. This would mean that it would no longer be necessary to apply for a Court of Protection welfare order to authorise deprivations of liberty outside of care homes and hospitals.
- Hospitals and clinical commissioning groups would be able to authorise deprivations of liberty in England, not just councils, as with DoLS.
- The authorisation of a deprivation of liberty would turn on three assessments – a capacity assessment, a medical assessment to test ‘unsoundness of mind’ and an assessment of whether a deprivation is necessary and proportionate; DoLS was based on six, including a best interests assessment, which would be removed.
- The current best interests assessor (BIA) role, which coordinates the DoLS process, carries out the best interests assessment and is mostly performed by social workers, would be replaced by that of an approved mental capacity professional (AMCP).
- However, while a BIA is required in all DoLS cases, the AMCP would only be called upon to assess an LPS cases where it appeared that the person did not want to reside or receive care or treatment in the proposed care setting.
- In cases where the person did not object, the body responsible for the placement (a local authority, hospital, CCG or health board) would need to arrange the three assessments and then have them independently reviewed by an employee not involved in the case.
- As such the LPS would be a two-tier system of safeguards, unlike the DoLS, where there is a single system for all cases.
But with the government saying its view on the proposed replacement of DoLS was “provisional” and that it needed to consider the detail of the Law Commission’s proposals more carefully, it is possible that elements of the LPS will be changed before legislation is introduced.
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