Law Commission review of Deprivation of Liberty Safeguards to be speeded up

The Law Commission’s review of the legislation underpinning the Deprivation of Liberty Safeguards is to be accelerated, the Minister for Community and Social Care has announced.

Alistair Burt told a Commons Debate that the Law Commission had agreed to publish its report and draft bill by the end of 2016, instead of 2017 as originally scheduled.

The Law Commission will next month (7 July) launch a public consultation on the issue.

The minister said the case for a thorough review of the legislation in the area was “unambiguous”.

He argued that the relevant legislation had been criticised by select committees in both the House of Commons and the House of Lords, even before the implications of the Supreme Court judgment [in Cheshire West] had become clear.

Burt said: “Given the criticism of the current DOLS legislation, and bearing in mind the likelihood of unintended consequences, I strongly believe that it is important for the Law Commission to be given the time to consider the entire legislation in the round and, if appropriate, propose a comprehensive solution.”

He added that it would be unwise to rush into specific legislative changes, the repercussions of which might not be clear. He was therefore “not tempted at the moment to make any changes to the regulations”.

However, the minister said he agreed with Ann Coffey MP, who secured the debate, on the need for greater urgency and therefore an acceleration of the Law Commission review.

He acknowledged that the end of 2016 was “still some time away”, but added: “[Bearing] in mind the complexity of the issue, I do not think we can afford to get the next bite at this wrong.”

The Minister said the Department of Health had been working with various partners to support the system’s response to the Supreme Court judgment.

“I reiterate now that the response to that judgment must be rooted in the principles and values of the Mental Capacity Act. Our efforts have to be focused primarily on realising real benefits for individuals. DOLS are about people, not paperwork,” he said.

Burt said the Department had issued clear guidance that emphasised the importance of a proportionate Mental Capacity Act-centred approach, and emphasised that ‘bulk applications’ for all the residents of a care home were not acceptable.

The minister added that the Government recognised that the scale of the challenge set by the Supreme Court meant that some local authorities would be unable to process DOLS applications within the 21-day legal timeframe.

“The Care Quality Commission has been clear that providers will not be unfairly punished for such technical breaches,” he said.

“However, the CQC has been equally clear, quite rightly, that a do-nothing approach is unacceptable, so providers and local authorities must have a plan in place for ensuring that those who stand to benefit most from a DOLS assessment receive one in a timely manner.”

The minister also noted:

• The work done to reduce the non-statutory bureaucracy accompanying the DOLS process, with a cut in the number of application forms from 32 to 13.
• The Law Society’s production of guidance, in collaboration with practitioners, to assist in identifying a true deprivation of liberty.
• The provision of an extra £25m – announced in March this year – for local authorities, to support their efforts on DOLS in 2015-16.

Burt said he understood the concerns that some local authorities had about the cost of DOLS, and he praised the hard work of local DOLS teams.

However, he added that he was aware that there was considerable variation among local authorities as regards the number of applications that they had been able to process.

The minister said: “Although some may baulk at the idea of 100,000 DOLS applications a year, we should remember that every one of those applications represents a person having their care independently scrutinised. DOLS can help to shine a light on care that is unnecessarily restrictive and does not put the person’s views first and foremost. Therefore, we should strongly back the principles of DOLS.

“Our shared challenge now is, through the Law Commission review, to understand how those principles can be better applied in the day-to-day reality of the health and care system and after the unintended consequences of the judgment.”

Ann Coffey MP said that in calling for the debate she wanted to highlight “an expensive bureaucratic nightmare that is engulfing councils up and down the country”.

Local authorities were struggling to cope with the tenfold increase in applications for deprivation of liberty safeguards, she said, which “is not only costing millions of pounds and tying up countless police and other resources, but causing untold distress to relatives of dementia sufferers who are treated when they die as if they had died in state detention”.

Coffey also expressed concern at the consequences of guidance issued by the Chief Coroner to local coroners in December 2014, subsequent to the Supreme Court judgments.

“The guidance stated that all deaths of people subject to a DOLS order must be investigated by the coroner, whether the death was from natural causes or not, and that such people were deemed to be ‘in state detention’,” she said.

“As a result, when a dementia sufferer subject to a DOLS dies in a care home, GPs have to notify police, who must come and sit with the body until it is collected by the coroner’s mortician to be taken to the hospital mortuary, where it has to be formally identified before a formal inquest process starts. That system is causing untold distress to relatives and leading to an increased workload throughout the public sector.”

The MP noted reports nationally of relatives of dementia sufferers who had passed away in care homes being forced to wait months to bury loved ones because of the rules.

She added that GPs had told her they were worried that the Chief Coroner’s advice would have an enormous and far-reaching impact across a great many services, “not least affecting patients and grieving relatives.”

In response the minister stressed that the Chief Coroner had stated that coroners were able to make their own judgment on the matter. “He also states that, where appropriate, any inquest could be paper-based and certainly that neither a jury inquest nor a post mortem is required,” he said.

“None the less, I have heard distressing reports of coroner’s investigations leading to unforeseen delays in funeral arrangements and causing great anguish for relatives.”

The minister said the Department of Health had issued guidance urging local authorities to work closely with their coroner to develop a proportionate response. “I am aware that many have done so and, for the time being, that may be the way through the difficulties.”

The Department is to issue further guidance on the matter in the next few weeks, and the minister committed to writing to the Chief Coroner “to ensure that we are doing all we can to encourage an approach that minimises the potential distress to relatives”.

Burt added that the was not persuaded that a legal challenge to the Chief Coroner, at this stage, would be the best way forward. Instead he offered to seek a meeting with the Chief Coroner and obtain his written response to the problems raised.