Law Commission urges replacement of Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DoLS) are failing those they were designed to protect and should be replaced "right away" with a new scheme, to be called the Liberty Protection Safeguards, the Law Commission has recommended.

In its final report, Mental Capacity and Deprivation of Liberty, the Government’s law reform advisory body highlighted the increased administrative pressures on local authorities since the Supreme Court’s decision in 2014 in the Cheshire West case, which meant that far more people were recognised to be subject to the DoLS than previously thought.

The Law Commission noted how hospitals and care homes in England made 195,840 DoLS applications in 2015-16 – more than 14 times the 13,700 in 2013-14. “An increasing number of DoLS referrals are also being left unassessed and statutory time-scales are being routinely breached,” it said.

In England out of the 195,840 DoLS referrals during 2015-16, only 43% were completed in the year. Of those only 29% were completed within the 21-day time-limit set in regulations.

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.

“We know there are enormous pressures on health and adult social care at the moment and our reforms will not only mean that everyone is given the protections they need, but could also deliver a saving to the taxpayer.  That’s cash that can then be directly reinvested to support those most in need.”

In the report the Law Commission said the current regime was “in crisis and needs to be overhauled”.

Many consultees, particularly NHS bodies and local authorities, had “pointed to the practical and financial impact of Cheshire West, such as the increasing backlog of cases, referrals for authorisation being left unassessed, the legal timescales for authorisations being frequently breached and shortages of people qualified to perform roles under the DoLS provisions”.

Many councils and NHS bodies reported that they were not even considering obtaining authorisations for deprivations of liberty in cases outside hospital and care home settings, or involving 16 and 17 year olds, where the DoLS do not apply.

The Law Commission suggested that there was “a compelling case for replacing the DoLS”, which were seen as overly technical and legalistic, and too often failed to achieve any positive outcomes for the person concerned or their family.

It added that any notion that the DoLS could be patched up to cope, even in the short term, was unrealistic.

“Article 5 rights must be practical and effective,” the Law Commission argued. “It is not acceptable to continue with the current system under which many people’s rights have become theoretical and illusory.”

The final report, which includes a draft Bill, sets out the key features of the proposed Liberty Protection Safeguards. The Law Commission said the scheme, if implemented, would mean:

• "enhanced rights to advocacy and periodic checks on the care or treatment arrangements for those most in need
• greater prominence given to issues of the person’s human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised
• extending protections to all care settings such as supported living and domestic settings – therefore removing the need for costly and impractical applications to the Court of Protection
• widening the scope to cover 16 and 17 year olds and planned moves between settings
• cutting unnecessary duplication by taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions
• extending who is responsible for giving authorisations from councils to the NHS if in a hospital or NHS health care setting
• a simplified version of the best interests assessment which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised."

The Law Commission said it recognised that many people who needed to be deprived of their liberty at home benefited from the loving support that close family could provide.

It argued that its reforms, which widen protections to include care or treatment in the home, were designed to ensure that safeguards could be provided in a simple and unobtrusive manner, which minimised distress for family carers.

The Law Commission estimated that the Liberty Protection Safeguards would cost £236m a year in total – a saving of £10m which could then to be reinvested into adult social care services.

It also pointed out that if the current system was working and every referral to DoLS was completed within the year they were referred, this could cost up to an estimated £2.2 bn annually.

The Government’s law reform advisory board said the draft Bill would also amend other parts of the Mental Capacity Act to provide increased protection for people whose rights to respect for their private and family life and their home under Article 8 of the ECHR are at risk, whether or not they risk being deprived of their liberty.

All decision makers will be required to place greater weight on the person's wishes and feelings when making decisions under the Act.

The report also recommended that the Liberty Protection Safeguards should be accompanied by the publication of a new code of practice covering all aspects of the Mental Capacity Act, including the new scheme.