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The Law Commission Proposes To Scrap The Deprivation Of Liberty Safeguards For Protective Care System

The Law Commission and media rhetoric have been very critical of the Deprivation of Liberty Safeguards (DoLS) which have been in place since 2009. The Law Commission proposes an entirely new approach, called “Protective Care”. The new scheme aims to better safeguard those who lack capacity to consent to their living arrangements and/or their care and treatment.

Proposed Protective Care plan explained

The scheme would be based on having Approved Mental Capacity Professionals deal with making and reviewing care plans as well as assessing the person’s capacity and identifying what is in their Best Interests.

The person who lacks capacity (the ‘resident’), still has an advocate, but appeals will be heard by specialist tribunals rather than the Court of Protection, and these tribunals would consist of medical and mental health practitioners.

The proposed Protective Care scheme would consist of:

Supportive care

Applying to people in care home, supported living and shared lives accommodation.

Restrictive care and treatment

Applying to:

People in care home, supported living and shared lives accommodation who receive restrictive care and treatment;

Deprivations of liberty involving people in family or domestic settings.

Hospital and Palliative care

Applying to patients in NHS, independent or private hospitals and hospices who require care and treatment for physical disorders.

Mental Health Act interfacecare

A new mechanism under MHA to enable the admission to hospital of compliant incapacitated patients that would amount to a Deprivation of Liberty.

People who come under the restrictive care and treatment or the hospital and palliative care schemes would be able to challenge their arrangements before a First Tier Tribunal (a judicial body). If no one applies to the tribunal within a set period of time then a further safeguard would apply: Local Authority Social Services departments will have to refer people to the tribunal.

Other potential changes to the Mental Capacity Act

The Law Commission’s consultation paper also discusses the possibility of introducing a new criminal offence of unlawful deprivation of liberty. This would no doubt increase the pressure on those dealing with people who lack capacity in this respect and lead to a further increase in Social Services Safeguarding investigations.

There will also be consideration of whether people should be charged for their accommodation whilst being deprived of their liberty in their Best Interests. Considering the recent delay in the introduction of the Care Act 2014 capital care cap to 2020, it is likely that suggestions of resourcing accommodation for those subject to a deprivation of liberty from Social Services funding (the public purse), will be resisted.

Case law changes to DoLS in 2014

DoLS underwent major changes in March 2014 following a report published by a House of Lords Select Committee which found that the DoLS were not “fit for purpose” and recommended that they be replaced.

The Cheshire West case was heard in the UK Supreme Court at the same time as this report was published. The Court held that a large number of people should be dealt with under the DoLS system but these people had no safeguards in place. There seemed to be a widespread lack of understanding for the Deprivation of Liberty Safeguards code of practice.

Some of these people had previously fallen outside the original DoLS criteria. The widening of the DoLS criteria placed huge additional burdens on Health and Social Services who were administering the safeguards and the Law Commission’s proposals seek to improve the situation. The proposal should benefit those who lack capacity to consent to their living arrangements, care and treatment, but also their family and representatives, the health and social care practitioners who have safeguarding duties, and the Court system.

DoLS in practice

Having dealt with a number of cases in which a client’s elderly mother or father has been found to lack capacity to consent to their living arrangements; I have found that there are many Best Interests Assessors and Independent Mental Capacity Advocates who have an excellent grasp of the current DoLS criteria, their role and more importantly, being able to truly focus on the resident’s Best Interests. Often these professionals are employed by charities or companies who are then contracted to work on cases for local Councils. Many of these BIAs and IMCAs have expressed their concerns about the abilities of Social Services Adult Social Care Teams and care providers who have not had adequate training, support or staff numbers to be able to act efficiently and in the resident’s Best Interests.

I had a recent case in which my client’s mother had been in hospital for over six months. A review two months after her admission had determined that she was clinically fit to be discharged and did not require further treatment or rehabilitation on the Ward. The individual was deemed to lack mental capacity to decide where to live and what care and support she required once discharged. She had suffered from a second stroke, but was still able to communicate her wishes and feelings. She was incredibly distressed at the length of time she had been forced to remain in hospital and was desperate to return to her disability-adapted home.

Despite clear instructions from the Best Interests Assessor who authorised a DoLS for 14 days (“they shouldn’t have needed 14 days but I decided to authorise it to give them time to complete their assessments so she could finally go home”); and despite the IMCA’s report that it was in her Best Interests to be discharged home with a package of care in place (“the staff on this case have been so incompetent”); the Adult Social Care Team delayed matters further by refusing to share information with my client on data protection grounds. That information was vital in allowing us to work towards a safe discharge from hospital within a few days. I eventually managed to secure my client’s mother a six week Intermediate Care package with a live-in carer and the lady was discharged with this package within two days of it being agreed.

Protective Care: a fresh approach to Mental Capacity assessments

If professionals such as the BIAs and even IMCAs of the calibre my client’s mother was appointed are given the role of Approved Mental Capacity Professionals under the Protective Care scheme, this could dramatically improve the quality of care arrangements and safeguarding for many. The Law Commission believes that the new system would not only improve matters in terms of the experience for the resident and his or her advocates during the process, but it would also be more cost effective for all parties involved. If AMCPs have additional powers, this could also lead to a reduction in delayed discharges from hospital and delays in completing Care Needs Assessments and generating appropriate Care Plans, which is the whole point of having safeguards.
Although there are many complex issues surrounding such an overhaul, it appears as though a Protective Care system would benefit those most in need of having their health and wellbeing truly safeguarded.

The Law Commission has asked for all interested parties to respond to its consultation, the deadline to do so is 2 November 2015.

If you seek advice on Safeguarding a family member or loved one, our Community Care Law team can help you. Contact us today on 01273 609911 or email

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