Thousands of vulnerable people with dementia and learning disabilities will be given better protection by a new law announced today by the Government.
The new Mental Capacity (Amendment) Bill, based on Law Commission recommendations, brings in extra protections for those who lack the mental capacity to make decisions about their care.
It will bring forward a replacement to the Deprivation of Liberty Safeguards, a bureaucratic system of protections for those deemed to be deprived of their liberty, which a Commission report criticised in 2017 as “failing those they were set up to protect”.
Law Commissioner Nicholas Paines QC said:
“In our report we were clear that the Deprivation of Liberty Safeguards needed to be replaced as a matter of pressing urgency.
“This new legislation, based broadly on our recommendations, will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in our society.”
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 protect the person and provide a means to challenge any such deprivation.
But in 2014 a House of Lords Committee criticised the DoLS as being overly bureaucratic and “not fit for purpose”. At around the same time, 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. Last year more than 108,000 vulnerable people were being deprived of liberty without any proper safeguard checks.
In March 2017, following extensive consultation, the Law Commission called for the DoLS to be scrapped and replaced right away. The legal body recommended a replacement system, the Liberty Protections Safeguards.
This call was supported by the Joint Committee on Human Rights report, which published a report in June 2018 examining the Law Commission’s proposals, which said the current system is broken and that urgent action is needed.
The ongoing work of the Independent Review of the Mental Health Act led by Professor Sir Simon Wessely is also likely to lead to refinement and improvement in the operation of the scheme.