In a final report and draft bill published today, the Law Commission has stated that the deprivation of liberty safeguards (DoLS) are frequently not used when they should be, leaving individuals without the protections parliament intended. After local authorities experienced a tenfold increase in applications in England and a 16-fold increase in Wales following the Supreme Court’s Cheshire West judgment, the Commission was asked to examine current safeguards and found an urgent need for them to be replaced.
The report states: –
“In our view, there remains a compelling case for replacing the DoLS. There is widespread agreement that the DoLS are overly technical and legalistic, and too often fail to achieve any positive outcomes for the person concerned or their family.”
The report goes further suggesting that the best interests assessment tends to “rubber stamp” the decision already taken by the care team, meaning that the DoLS are not really a safeguard.
The Commission’s new proposed “liberty protection safeguards” would “dispense with the current carousel-like process in which, for example, a local authority makes a decision to place the person in a care home, the care home applies to the local authority for authorisation of the resulting deprivation of liberty and the local authority then decides whether to authorise a deprivation of liberty that they have already arranged.”
In “truly urgent” situations and emergencies, urgent authorisations would be replaced with a statutory authority to deprive someone of their liberty temporarily, but only to enable life-sustaining treatment or prevent a person’s condition deteriorating.
Until the proposed arrangements have been requested, a deprivation of liberty could not be imposed on someone.
Fundamentally, the Commission’s proposed scheme sets out to focus on whether a deprivation of liberty is necessary and proportionate at the stage where arrangements are being devised. The safeguards would apply to hospitals, care homes, domestic settings and supported living.
Robert Bourns, the Law Society president, said: –
“As our population ages and the number of people who need long-term care grows, we think the existing measures to protect people who lack mental capacity are not fit for purpose. We would welcome streamlined DoLS to provide vigorous protection to those who are after all some of the most vulnerable of society.”