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Law in Action
There’s been a couple of high level announcements in the last fortnight concerning the Deprivation of Liberty of Safeguards (DOLS) and the Mental Capacity Act. The first of these was the Supreme Court’s judgement relating to a case concerning Chester and Cheshire West council, and the second is the House of Lords select committee report into the working of these pieces of legislation.
The Supreme Court has declared that a young man known as P aged 39 with severe learning disabilities and difficult behaviour is being deprived of his liberty, in a small supported living situation. For those of you who have been following the case you will know that a previous court had said he wasn’t deprived of his liberty. The judge’s view then was that because of the level of care he needed meant that the restrictions placed on him was really ‘normal’ living for someone so disabled. The highest court in the land, the Supreme Court has thought differently. Their judgement has come close to giving us a new definition of a Deprivation of Liberty – ‘where someone is under constant supervision and control and is not free to leave.’ Whether this proves helpful to practitioners and care homes remains to be seen. Already the Department of Health has issued some early guidance to ensure practitioners take into account the Supreme Court’s view, and we can expect some further revised Government guidance in the near future. If you want to read the detail on the case, and another related case, there’s a useful summary on the Supreme Court website at: http://www.supremecourt.uk/news/latest-judgments.html
The recent publication of the House of Lords select committee reinforces how complex and confusing these DOLS regulations can be. Again their report may well lead to new guidance being issued. Meanwhile, I’ve picked out some key messages from the report, regarding how up-to-speed everyone is with the way the Mental Capacity Act and DOLs should be working:
- There’s a lack of awareness about the Mental Capacity Act amongst a lot of people who matter, such as family carers.
- There’s lots of information out there – getting hold of the various guides should not be a problem.
- There is an issue about how useful and relevant all of this information is for different audiences, and perhaps guidance should be tailored specifically for different audiences and their responsibilities (e.g. GPs, Families, Care home providers).
- Further work is needed to ensure that care homes and hospitals understand fully when the Deprivation of Liberty Safeguards should be used, and what the difference is between a restriction on liberty and a deprivation.
- Awareness training should centre on the five principles of the Mental Capacity Act – these should be the basis for all our decision making.
You can find the full House of Lords report at: http://www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf