The Deprivation of Liberty Safeguards (DoLS) are not fit for purpose and should be replaced with legislation that is in keeping with the language and ethos of the Mental Capacity Act 2005 as a whole, a House of Lords committee has said.
In a report the select committee – which was established to conduct post-legislative scrutiny of the MCA – said the evidence suggested that thousands, “if not tens of thousands”, of individuals were being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended.
The DoLS were inserted into the MCA by the Mental Health Act 2007, to fill a gap in the legislative framework identified in the European Court of Human Rights case of HL v UK.
Better implementation “would not be sufficient to address the fundamental problems identified” with the safeguards, the committee said.
It added that replacement legislative provisions should make a clear link to the principles in the MCA to ensure consistency with the empowering ethos of the Act as a whole, and be drafted in clear and simple terms.
Commenting on the 2005 Act overall, the committee suggested that it had been a visionary piece of legislation for its time, marking a turning point in the statutory rights of people who might lack capacity.
“The Act signified a step change in the legal rights afforded to those who may lack capacity, with the potential to transform the lives of many,” the report, which can be viewed here, said.
The committee said its findings suggested that the Act, in the main, continued to be held in high regard.
“However, its implementation has not met the expectations that it rightly raised,” the report said. “The Act has suffered from a lack of awareness and a lack of understanding. For many who are expected to comply with the Act it appears to be an optional add-on, far from being central to their working lives.”
The peers argued that the prevailing cultures of paternalism (in health) and risk-aversion (in social care) had prevented the legislation from becoming widely known or embedded.
They said: “The empowering ethos has not been delivered. The rights conferred by the Act have not been widely realised. The duties imposed by the Act are not widely followed.”
The committee suggested that part of the reason for the Act’s patchy implementation was the lack of central ownership of the legislation, and they called for an independent body to be given responsibility for oversight “in order to drive forward vital changes in practice”.
This body would not remove ultimate ownership for the Act from ministers, the report suggested, but it would locate in one place (within a new or existing body) ownership and thereby provide a form of accountability, and a focus for enhanced activity.
The peers said the independent body should make it a priority to achieve better understanding of the purpose behind the DoLS, which was urgently required.
On the safeguards, the report said the intention behind them was understood and supported. However, the legislative provisions were “poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act.”
The report made a number of significant recommendations to Government. These included that it should:
- Work with regulators and professional bodies to ensure the Act is given a higher profile in training, standard setting and inspections;
- Increase the staff resources at the Court of Protection to achieve a significant reduction in the time taken to deal with non-contentious property and financial affairs cases;
- Consider whether to make mediation a pre-requisite for launching CoP proceedings, especially in cases concerning property and financial affairs where the costs fall to P;
- Reconsider the provision of non-means tested legal aid to those who lack capacity, in cases of deprivation of liberty;
- Provide clearer guidance to public authorities regarding which disputes under the Act must be proactively referred to the court by local authorities. “This should include situations in which it is the person who is alleged to lack capacity who disagrees with the proposed course of action”;
- Address the poor levels of awareness and understanding of Lasting Powers of Attorney and advance decisions to refuse treatment among professionals in the health and social care sectors;
- Review the criminal law provision for ill-treatment or neglect of a person lacking capacity to ensure that it is fit for purpose;
- Close a ‘new Bournewood gap’ that had inadvertently been created by the attempt to prevent overlap with the Mental Health Act 1983.
The peers said councils should use their discretionary powers to appoint Independent Mental Capacity Advocates “more widely than is currently the case”.
“We believe the costs of greater IMCA involvement should be balanced against the resources required in lengthy disputes or ultimately in litigation,” they added.
The standards against which the Care Quality Commission inspects should meanwhile explicitly incorporate compliance with the MCA, as a core requirement that must be met by all health and care providers.
Lord Hardie, who chaired the committee, said: “The committee believes that the Act is good and it needs to be implemented. What we want to see is a change in attitudes and practice across the health and social care sector which reflects the empowering ethos of Act.”
On the DoLS he said: “The Government needs to go back to the drawing board to draft replacement provisions that are easy to understand and implement, and in keeping with the style and ethos of the Mental Capacity Act."
The select committee also recommended that the House of Lords should seek an update from ministers in 12 months’ time to see what their response had been to the report’s recommendations.