
A group of Anthony Collins Solicitors (ACS) experts from across our various client sectors have gazed into their crystal ball and given us a view on how 2021 is looking.
The Deprivation of Liberty Safeguards (DoLS) - the bespoke authorisation process for people deprived of their liberty in care homes and hospitals – were described by the House of Lords Select Committee for the Mental Capacity Act 2005 (MCA) as “frequently not used…leaving individuals without the safeguards Parliament intended” and social care providers “vulnerable to legal challenge”.
The Law Commission was tasked with undertaking a complete review of the relevant legislation and, following a lengthy and detailed consultation, published its final report and draft bill on 13 March 2017.
Care providers have been hoping to see a new system put forward; one which is less convoluted, more straightforward to administer, and one that provides meaningful benefit for the individual concerned, whilst not overburdening providers with bureaucracy and expense.
Does it deliver?
The report sets out 47 recommendations that cover not only deprivation of liberty, but also reforms that aim to improve MCA decision-making more widely. It is fair to say that the report and the provisions in the draft bill will probably receive a mixed reception from care providers.
The good news
There is a new scheme for authorising deprivation of liberty; the Liberty Protection Safeguards (LPS). This offers a simplified process, which retains some of the more useful features of DoLS, but happily dispenses the inefficient and unhelpful aspects. There are still three assessments to be undertaken, by at least two different independent assessors.
Good news for providers
Providers may particularly welcome the following features of the new proposed scheme:
Good news for the individual
Challenges for providers
However, there are elements to the report and draft bill that may worry health and social care providers and prompt a review of certain aspects of practice - particularly in relation to admission procedures.
If care arrangements have not been commissioned or set up by an NHS body or a local authority, as in the case of self funders in care homes, it will still fall to the provider to apply to the responsible body for authorisation.
The draft bill creates a new civil claim for damages, should private care providers put arrangements in place that are not authorised, and give rise to a deprivation of liberty. However:
What happens next?
The draft Mental Capacity (Amendment) Bill was laid before Parliament on 13 March 2017, and so now it has been passed over to the Government. It is impossible to guess how much of the original draft will survive the scrutiny and debate of the House of Commons and then the House of Lords, to ultimately receive Royal Assent by becoming an Act of Parliament. For the time being, therefore, it remains very much business as usual for the health and social care provider as far as deprivation of liberty is concerned.
Our team at Anthony Collins Solicitors will be monitoring the progress of this draft bill and will provide regular updates.
Further information
If you require advice and assistance in relation to the implementation or management of the existing schemes to authorise a deprivation of liberty, including DoLS, please do not hesitate to contact Sheree Green.
You can find out more about the work we do regarding liberty and protection on our website here.
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