The Deprivation of Liberty Safeguards (DoLS), the framework which provides authorisation of restrictions of an individual’s freedom, look set to be repealed and replaced by a new scheme called the ‘Liberty Protection Safeguards’.
A House of Commons Library briefing paper has raised the actions recommended by the Law Commission’s report, published in March 2017, advocating the urgent repeal of the controversial rules that were introduced into the Mental Capacity Act in 2009.
DoLS provide a six-tiered statutory framework for the approval of a deprivation in situations where a person lacks mental capacity to consent to their care arrangements, and it is deemed that it is in the best interests of the patient to restrict their freedom.
A Supreme Court judgement in the case of P V Cheshire West & Cheshire Council [2014] changed the definition of a deprivation of liberty, thus increasing the volume of individuals determined to have their liberty deprived. As a consequence of this judgement, the number of DoLS applications has increased ten-fold, the implications and repercussions of which have been significant for social care practitioners and local authorities.
The new Liberty Protection Safeguards intend to ‘streamline the process for assessing whether a deprivation of liberty is necessary’ as well as increasing the efficiency of the authorisation process. The new safeguards would also apply to a broader group of people than those currently covered by DoLS, which only apply to deprivations in care homes and hospitals. Furthermore, 16 and 17-year-olds will now be protected under the new legislation.
Best Interests Assessors are expected to be replaced by an ‘Approved Mental Capacity Professional’ (AMCP) and the requirement for a best interests assessment in every case will be removed, with the focus of the thorough assessments shifted to only the more ‘serious’ cases whereby the care arrangements are contrary to the wishes of the patient.
When a possible deprivation is identified, the responsible body (usually the local authority) will be required to arrange a medical and capacity assessment, before considering whether the proposed care placement is necessary and proportionate. The case will be then considered by an ‘independent reviewer’, who is not involved in the patient’s care. If the conditions are considered to be met, the deprivation will be approved; if there are concerns regarding the placement however, the case will be referred to an AMCP.
The Law Commission report states that the new scheme will offer ‘further protection to people who object to their proposed placement’, while increasing the efficiency of the process and striking a ‘proportionate balance between responding efficiently to the volume of cases requiring authorisation since Cheshire West and giving proper safeguards to people whose objections are too easily over-ruled under the current law.’
The Government is due to publish its response to the recommendations.
If you have any queries, please do not hesitate to contact Ethan Bradley (ethan.bradley@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.
