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From DoLS to providing Protective Care
The journey to get to where we are on the operation of the Deprivation of Liberty Safeguards (or DoLS) is a long and tortuous one. New proposals released by the Law Commission earlier this month offer new hope in making them more streamlined and easier to operate, and to hopefully protect the interests and rights of vulnerable people. I want to discuss those proposals here.
First a reminder that the issues around unlawful deprivation did not start recently. We could go back to Magna Carta in 1215, with the historic principle "No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, … nor will We not pass upon him, nor condemn him, but by lawful judgement of his Peers, or by the law of the Land” or in more up-to-date language people can only be deprived of their liberty if the law allows it. The European Convention of Human Rights written in 1950 reinforces that in Article 5 “No one shall be deprived of his liberty…. in accordance with a procedure prescribed by law.”
Source of the problems
To begin our review of the proposals, let’s look at the more recent origins of the Deprivation of Liberty Safeguards which takes us back to 1997 and the case concerning ‘HL’ who was detained in the Bournewood Hospital without any lawful process. People who have been working in mental health services for some time will remember the differing guidance from the Department of Health after this case went to the High Court, then the Court of Appeal, and then the House of Lords.
The Court of Appeal’s judgement was that 'HL' was deprived of his liberty without this being authorised in law. This meant that health professionals began detaining many more people under the Mental Health Act in hospital, not because they were objecting, but because they lacked the capacity to consent to be there. That judgement was overturned by the House of Lords in 1998 but the case eventually was heard in the European Court of Human Rights who said in 2004 it was an unlawful deprivation and the Government had to do something about it. Hence the DoLS to fill the so-called ‘Bournewood Gap’.
DoLS framework under scrutiny
There have been a number of problems with the DoLS framework highlighted in a number of court cases, hence the need for a review undertaken by the Law Commission. So what have been the issues that the Law Commission needed to deal with?
- The fact there is no definition in the law of a Deprivation of Liberty. An attempt at a definition in a case last year (the so-called ‘acid test’) of not being free to leave, has thrown up a huge rise in applications. The Law Commission noted that care staff were expected to know what a deprivation of liberty looked like, yet lawyers and judges were often involved in very technical arguments about what it means. The other important issue that the Commission looked at was the scheme was only concerned with one article of the European Convention on Human Rights – namely the right to liberty. In fact a number of the controversial cases that have been to court were all about other rights, particularly the right to family life.
- The DoLS only apply in care homes and hospitals, not in community settings such as supported living . So for these, an application has to be made to Court of Protection with even more resource implications.
- The terminology has not helped – no one wants to go around depriving people of their liberty – we want to safeguard their interests, and try and achieve settled and safe lives of enjoyment for people in our care.
Proposals for Protective Care
So let’s see how the Law Commission has tackled these issues. Well they certainly haven't tinkered around the edges - they're proposing scrapping the DoLS system and replacing it with a new system called 'protective care'. They've been able to offer a system that does away with a lot of awkward terminology, and gets around the problem of the 'deprivation' definition by suggesting a much wider system that applies to a wide range of settings and a range of protective care schemes with a simpler layer of safeguards. The Commission propose three tiers in their safeguards system for people who lack mental capacity:
- Supportive care – subject to an assessment and care plan, with the protection of an advocate
- Restrictive care and treatment – where the person needs more restriction in their daily life, that might, but might not amount to a deprivation of liberty. A new role of Approved Mental Capacity Professional would assess the suitability of this. The great advantage of this suggestion is that hopefully we would not need to get tangled up with definitions. What we would get is an illustrative list to decide whether someone should be subject to this restrictive care scheme. This scheme would apply to a much wider range of settings (not just care homes and hospitals). The other advantage is the assessment is so much simpler than the six (!) assessments needed with the current DoLS scheme.
- A third tier hospital scheme with additional safeguards.
The Law Commission were critical of the DoLS law and guidance, and were much more supportive of the principles and Code of Practice accompanying the Mental Capacity Act (MCA). They see their new scheme being much more rooted in the philosophy of the MCA.
The consultation period runs until 2nd November. If you want to get involved take a look at the document here. Towards the end of the document there are a number of questions in relation to each of the Law Commission proposals which you are invited to respond to.
There are a couple of questions I just want to highlight:
The first question concerns the issue of people who die in care homes whilst subject to a Deprivation of Liberty of Safeguard authorisation and the necessity for a Coroner’s Inquest which has caused much anguish and which I wrote about in a recent blog post. The Law Commission are asking if full inquests are really necessary in all cases and whether an investigation without the full formality of an inquest might be sufficient.
The other question concerns charging for care and accommodation in a care home . The Law Commission points out how unfair it seems for service users to be required to live in a care home with restrictions in place to ensure they continue live there, to then be charged high fees for doing so!
I think the Law Commission recognises that in the current financial climate, this is unlikely to change.
David Beckingham – QCS Expert Mental Health Contributor