Deprivation of liberty rules are ‘in crisis’ and must be replaced, says Law Commission

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Current laws that aim to ensure disabled people are not deprived of their liberty unlawfully are “in crisis” and need to be replaced urgently, according to the government’s advisers on law reform.

The current system has led to tens of thousands of people with dementia and learning difficulties being detained in hospitals and care homes without the appropriate independent checks that their rights have not been breached, according to the Law Commission.

This week, following a public consultation, the commission published its final report on Mental Capacity and Deprivation of Liberty, which includes proposals for new legislation on how the law should ensure that people without the capacity to give their consent to their care arrangements are the least restrictive they can be and are also in that person’s best interests.

The current system, the Deprivation of Liberty Safeguards (DoLS), has been described as an “administrative and bureaucratic nightmare”, and the report says it is “overly technical and legalistic”, and that the safeguards “too often fail to achieve any positive outcomes for the person concerned or their family”.

The report was commissioned by the Department of Health in the wake of two decisions by the Supreme Court in March 2014, which significantly widened the definition of who was subject to DoLS.

As a result of the court’s rulings, hospitals and care homes in England made 195,840 DoLS applications in 2015-16 – more than 14 times the 13,700 applications in 2013-14 – while 100,000 people who required DoLS authorisation did not receive it.

The report says: “It is not acceptable to continue with the current system under which many people’s rights have become theoretical and illusory.”

The report proposes a new system, which it calls the Liberty Protection Safeguards, which would mean fewer cases would need to be assessed by an independent professional.

The new system would extend legal protection to care and treatment in the home, and not just care homes and hospitals, as well as giving “greater prominence” to human rights issues, and to whether a deprivation of liberty was “necessary and proportionate”, says the commission.

It would also ensure that formal consideration of the justification for a deprivation of liberty would take place before the care arrangements were made, rather than afterwards, as happens currently.

The commission says its suggested new system would also provide stronger rights to advocacy and regular checks on the care or treatment arrangements made for those most in need, as well as extending safeguards to 16 and 17-year-olds, who are not protected under DoLS.

The Law Commission says the new procedures would – if the government agreed to legislate to introduce them – provide a more streamlined and “rights-focused decision-making process”, but would also secure new protection for people who object to a proposed care placement.

The report says the commission believes that its new proposals would be “in the spirit of” the UN Convention on the Rights of Persons with Disabilities, although it says it is “still not entirely clear” what the convention requires from laws on mental capacity.

Initial responses to the new proposals from legal experts and campaigners – including Mark Neary, Lucy Series and Rosie Harding – appear to be broadly positive and hopeful that they will improve on the DoLS, although with some concerns, including how they might work in practice, and the scope of proposed new powers for professionals.

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.”

A Department of Health spokesman said: “This government is committed to protecting the rights of vulnerable people – that’s why we commissioned this review.

“We also gave local authorities £25 million [for 2015-16]to help them manage increased administrative pressures following the 2014 Supreme Court judgment.

“We thank the Law Commission for its detailed work, and will be responding to these constructive recommendations in due course.”

Picture: Department of Health offices in Whitehall

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