The government has said it will bring forward legislation to provide greater protection for some of the most vulnerable people in our society.
In a Written Ministerial Statement Health Minister Caroline Dinenage said the government broadly agreed with the Liberty Protection Safeguards model proposed by the Law Commission in 2017 and would legislate “when parliamentary time allows”.
This new model is a solution to the problems caused by the failing Deprivation of Liberty Safeguards. These are a set of rules designed to ensure that people that lack the capacity to consent, such as those with dementia or learning disabilities, are protected when deprived of their liberty in a hospital or care home.
Law Commissioner Nicholas Paines QC said:
“The Deprivation of Liberty Safeguards are failing those they were set up to protect – some of the most vulnerable people in our society.
“Our Liberty Protections Safeguards would protect people’s basic human rights and help make sure that everyone gets the care they need.
“We’re pleased the government agrees and we stand ready to work with them to implement these reforms as soon as possible.”
Creating liberty protections for everyone
The Deprivation of Liberty Safeguards (DoLS) are a set of protections for adults who lack the mental capacity to consent to being accommodated in a hospital or care home for care or treatment.
For example, a dementia patient may be kept in their care home to prevent them from wandering off, which could put them in danger.
The DoLS are also supposed to deliver safeguards to the person and provide a means to challenge any such deprivation. Challenges can be by the family or patient, for instance.
In 2014 a Supreme Court decision, the Cheshire West decision, significantly widened the numbers of those vulnerable people considered to be deprived of their liberty.
As a result, health and social care services have been unable to cope with the huge increase in cases and the added administrative burden. As a result thousands of vulnerable people are being deprived of liberty without any proper safeguards.
In March 2017 the Law Commission recommended a new system, the Liberty Protections Safeguards. These safeguards 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.
Alongside these added protections the Liberty Protections Safeguards could provide a saving to the taxpayer.
The Law Commission estimates that the Liberty Protection Safeguards would cost £236 million a year in total – a saving of £10 million which could then to be reinvested into NHS health care and adult social care services.
If the current system was working and every referral to DoLS was completed within the year they were referred, the Law Commission estimates this could cost up to £2.2 billion annually (approximately 2% of the entire NHS budget).
In 2014 the Department of Health asked the Law Commission to review the laws around the Deprivation of Liberty Safeguards.
The final report with recommendations to government for reform is published here: https://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/