16th March 2017

The Law Commission recommends reform of the Deprivation of Liberty Safeguards (DOLS) process and improvements to the decision-making process under the Mental Capacity Act 2005 for those lacking capacity.

Four years ago the government tasked the Law Commission, an independent body that reviews the laws of England and Wales, with reviewing the Deprivation of Liberty Safeguards (DOLS). This was in light of a tenfold rise in deprivation of liberty cases triggered by the Supreme Court’s landmark ‘Cheshire West’ ruling in 2014 which widened the definition of who was subject to DOLS.  As a result, local authorities have been under significant pressure. There are widespread reports of case backlogs and breached statutory timescales, meaning safeguards have not always been used when they should have been, leaving vulnerable people without protection. Last year 100,000 people who required the authorisation did not receive it.

In their detailed report published on 13th March 2017 the commission found that the current system is “in crisis”. They explained “Article 5 rights must be practical and effective. It is not acceptable to continue with the current system where many people’s rights have become theoretical and illusory”.

The Commission has produced a draft bill to address their concerns, the key proposal being that the DOLS system be replaced with a new ‘Liberty Protection Safeguards’ (LPS). The significant changes are:

  • LPS would apply in more than one place rather than being restricted to one setting;
  • LPS would extend to any setting that might give rise to a deprivation of liberty, such as supported living and domestic settings;
  • LPS would extend who is responsible for giving authorisations from councils to the NHS if in a hospital or NHS health care setting;
  • LPS would apply to those aged 16 and above, rather than 18 and above;
  • Under LPS, urgent authorisations could only be used to enable life sustaining treatment or prevent a person’s condition deteriorating and a deprivation of liberty could not be imposed on somebody until the proposed arrangements had been authorised;
  • The current Best Interests assessor role would be revised to a new ‘Approved Mental Capacity Professional’ (AMCP) and the requirement for a best interest assessment in every case would be dropped. Instead AMCPs would focus only on more serious cases where care arrangements are contrary to the person’s wishes. Effectively, there would be a two-tier system of protections rather than applying the same checks to all cases:
  1. In all cases where a potential deprivation of liberty is identified, the responsible body would arrange a capacity assessment, a medical assessment and a check that the proposed care placement is ‘necessary and proportionate’. Every case would then be checked by an ‘independent reviewer’ – an employee of the responsible body who is not involved in the person’s care.

  2. Following this initial process, cases would only be referred to an AMCP if concerns were raised that the proposed placement is against the persons wishes. The AMCP would then determine whether to authorise the placement. They would be expected to meet with the person, scrutinise the previous assessments and consider their own professional judgment rather than simply considering whether those who carried out the assessments could reasonably reach the conclusions they did.

As well as changes to the DOLS, the Commission also recommends a wider set of reforms to improve decision making across the Mental Capacity Act – not just for those deprived of their liberty. The proposals would require decision makers to place greater weight on a person’s wishes and feelings when making decisions under the Act and professionals would be expected to confirm in writing that they have complies with the requirements of the Act when making decisions.

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.”

It is now up to the government to decide whether to take the commission’s recommendations forward. The full report and draft bill is available here.

Blog by Ronagh Craddock, Trainee Solicitor