This week The Law Commission published its report and draft Bill intended to overhaul the current Deprivation of Liberty Safeguards (DoLS). The proposed replacement will require advance authorisation of deprivation of liberty in all but truly urgent cases and there are calls for greater enforcement of penalties for non-compliance.
DoLS are intended to protect adults who lack the capacity to consent to being accommodated in hospital or a care home to receive care or treatment. There has been widespread criticism of the current safeguards, which the House of Lords Select Committee said were “frequently not used when they should be, leaving individuals without the safeguards Parliament intended” and left care providers “vulnerable to legal challenge”, concluding DoLS was not fit for purpose and proposing its replacement. Consequently a Law Commission project on Mental Capacity and Deprivation of Liberty was announced in 2014 and this week’s final report marks the conclusion of the project.
Following a 2014 decision in the Supreme Court, known as Cheshire West, the definition of those who should be subject to DoLS was widened dramatically, with practical and financial consequences. There has been a huge increase in the number of DoLS applications and statutory timeframes have been breached. Best interest assessments are being “rubber stamped” and the justification for the deprivation of liberty is often only considered after the event.
The Law Commission concluded that the current system is overly technical and legalistic, fails to provide vulnerable individuals with the protection intended and there is a compelling case to replace it.
The proposed replacement, “Liberty Protection Safeguards”, shifts the focus to the stage at which arrangements are being made to place the person in a care home, or hospital. The necessity and proportionality of the arrangements will be assessed in advance and authorisation would be required in advance for the arrangements to take effect and to deprive a person of their liberty.
Provision is also made to deal with urgent situations. There is a statutory authority to deprive someone of their liberty temporarily in truly urgent situations or in an emergency, but only to enable life-sustaining treatment or to prevent the deterioration of a person’s condition.
Care providers and healthcare professionals may cautiously welcome proposed reform to a burdensome system, which it has been acknowledged is overly technical and legalistic, overwhelmed by the number of applications and fails to provide vulnerable people with the necessary protection intended.
However, care providers and healthcare professionals will need to be alert to the shift in focus, requiring authorisation in advance of any arrangements taking effect and the restricted circumstances in which ‘urgent’ authorisations will be available. There will need to be consideration of whether DoLS authorisation will be necessary from the outset. In addition, there have been calls for penalties for non-compliance to be more consistently enforced, so there could be increasingly significant implications of failing to comply with the new system.
Michelle Penn, partner
Judith Davison, professional support lawyer