Law Society concern over "complex" scheme to replace DoLS

The Law Society has agreed that the Deprivation of Liberty Safeguards (DoLS) should be axed but has expressed concern at the potential complexity of the Law Commission’s proposed replacement scheme, Protective Care.

Chancery Lane’s comments came in a response prepared by its Mental Health and Disability Committee to the Commission’s consultation, which closed on 2 November.

When it unveiled its proposals for Protective Care, the Law Commission said the scheme would not be focused on authorising deprivations of liberty, “but instead upon providing appropriate care and better outcomes for people who lack mental capacity and helping their family and carers”.

Key elements of the scheme included:

• People who lack capacity and are living in care homes, supported living and shared lives accommodation should be provided with a set of safeguards intended to ensure that their accommodation and care and treatment are right for them.
• Additional safeguards would then apply if a person accommodated in these settings required some restrictive forms of care or treatment. Treatment of this kind should be authorised with a minimum of bureaucracy by an independent professional to be known as an Approved Mental Capacity Professional.
• A separate scheme of safeguards would apply for those accommodated in hospital settings and palliative care, and be tailored to recognise that people’s accommodation in these settings is usually temporary.
• Safeguards would also apply for those people deprived of liberty in family homes or other domestic settings, and these would recognise the special sensitivities that surround a person’s own home.
• Anyone subject to the Protective Care scheme should be provided with an advocate to represent their views and wishes, and that any restrictive treatment and care decisions should be challengeable in a specialist tribunal, rather than in a court.

The Law Society said it welcomed the Commission’s “comprehensive work” on Protective Care.

Its ‘headline views’ in its response were:

• The DoLS should be replaced. “However, the proposals for ‘Protective Care’ appear more complex than the current scheme. They involve two levels of care, different schemes for different settings, and two categories of detention under the Mental Health Act. Although we provide constructive responses to the questions and proposals posed within the paper we have doubts about how workable and effective ‘protective care’ may be in practice.”
• Significant training for health and social care professionals was vital if care and treatment compliant with the Mental Capacity Act 2005 was to be provided to all those who lacked capacity and were subject to liberty restricting measures. “A significant funding commitment is therefore also vital.”
• There were particular concerns about the new and central role of the Approved Mental Capacity Professional, a role it said was complex and could become overburdened. “It is important that this does not lead to the AMCP’s specialist functions being delegated to staff who lack the necessary expertise. AMCPs must retain their independence and there should be a further layer of authorisation above them.”
• Access to expert judicial oversight whenever restrictive care and treatment was challenged must be maintained. “A new Tribunal system might be the most suitable option to meet the significant increase in applications following Cheshire West, but there must be no loss of the expertise which currently resides in the Court of Protection, and access to the Tribunal/Court must continue to be supported through non-restrictive legal aid.”

The Law Society response can be viewed here.