Experts warn of considerable added responsibility in DOLs revamp

Draft legislation to reform Deprivation of Liberty Safeguards (DOLs) will place considerably more responsibility on care home managers to arrange assessments/carry out consultations, according to an expert in mental capacity and mental health law.

Barrister, writer and educator Alex Ruck Keene says that the bill, which began its passage through the House of Lords on Monday, brings “significant change in relation to care homes.”  He  notes that the reference to necessity/proportionality is no longer tied specifically to risk of harm/risk to self, but simply, now, necessity and proportionality.

Under the Mental Capacity (Amendment) Bill, people who may require an assessment include people with dementia, a brain injury, learning difficulties or autism. Examples of deprivations of liberty include the use of restraint, the use of bed rails to prevent a patient getting out bed, locks and keypads, a high degree of supervision or the lack of capacity to consent to altered terms of care. 

Mr Ruck Keene notes the following head-line points about the Bill: 

  • The Bill is focused solely upon a (version of) the Liberty Protection Safeguards (LPS), so the Law Commission’s proposed amendments to ss.4/5 have gone, as have regulation-making powers in relation to supported decision-making 
  • There is no statutory definition of deprivation of liberty (or provision for advance consent) 
  • There are provisions for emergency deprivation of liberty/deprivations pending authorisation under the LPS 
  • The scheme of the LPS is broadly replicated, albeit from age 18 upwards
  • The Law Commission’s proposed tort of unlawful deprivation of liberty (actionable against a private care provider) has gone
  • The LPS ‘line’ of excluding the LPS from the mental health arrangements has been changed, and the current status quo (i.e. objection) as regards the dividing line between the MCA/MHA in DOLS is maintained.

Launching the bill, minister for care Caroline Dinenage said the reforms streamline the DoLs system and will ease the burden on local authorities, saving an estimated £200 million+ a year.  

In 2017 a Law Commission review  proposed a reformed model for mental capacity legislation. Law Commissioner Nicholas Paines QC said the bill, which isbased broadly on [its] recommendations, will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in our society.”   

According to the Department of Health and Social Care, the bill will:

  • be less burdensome on people, carers, families and local authorities
  • introduce a simpler process with more engagement with families and swifter access to justice
  • allow the NHS, rather than local authorities, to authorise their patients, enabling a more streamlined and clearly accountable process
  • consider restrictions of people’s liberties holistically as part of their overall care package
  • eliminate repeat assessments and authorisations when someone moves between a care home, hospital, and ambulance as part of their treatment.   
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