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21st December 2016

Replacing DoLS: A delay to the process

Replacing DoLS: A delay to the process

We’ve all recognised that there are some challenges with the Deprivation of Liberty Safeguards (DoLS). Particularly since the Supreme Court clarified their view of what deprivation of liberty looks like in health and care settings, the numbers of applications have grown enormously.

Strains in the system

The strains have been huge and wide-ranging, and you’ll be very familiar with them. There’s extra work for providers making more applications, and keeping more records.  There’s the need to understand the process well enough to explain it to relatives who hear ‘deprivation of liberty’ and don’t hear ‘safeguards’ – so naturally they’re upset. Then there are the problems with the delays in getting the assessments done so that the local authority can make the decision to give an authorisation or not.  Some local authorities are coping much better than others, but most of them are running with waiting lists and triage systems.

It’s important to note and work within any conditions, and diarise when the current authorisation will end, and it will be time to consider whether to apply for another authorisation.

And even then there are the notifications (of each application and its outcome) to remember to send to CQC.

Law Commission plans

So we’ve all been waiting in hope for the Law Commission, the body that works to improve our laws, to publish their draft Bill on the new legal framework to replace the current one.  They had planned to publish this month, but we’ve just heard that it has been delayed, and will now be published by the end of March.

This shouldn’t affect the final timetable too much.  The Bill must be debated in Parliament, and, between now and the end of March, MPs will have their minds completely full with other matters -  the government has said it will trigger Article 50, to set the Brexit ball rolling, by the end of March as well.

If the change to the law is agreed in Parliament during 2017, which is what we all hope, there will be a lead-in time before the new scheme goes live, maybe up to two years. We’ll all need to get our heads around the changes and learn how to make the new system work to protect the rights of this most vulnerable group of people, those who lack mental capacity yet need their freedoms to be heavily restricted to keep them safe.

What do we do till then?

Well, we go on managing with the processes we’ve got.  Apart from the bureaucracy (and I suggest you check your processes so that they’re fool-proof), this is not so hard: DoLS are part of the MCA and exactly the same principles apply.

This means that, for any restraint or restriction of someone’s movement when they lack capacity to agree to it, you must use the lightest touch, never stop looking for ways to give more freedom to people, and find decisions they can make for themselves.

*All information is correct at the time of publishing

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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