This morning, the Law Commission published its proposals on reforming the legal framework for mental capacity and deprivation of liberty – www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/#related.
The Law Commission had been asked to look at reforming the law to address the inadequacy of a scheme that had been intended to safeguard vulnerable adults. This followed criticism of the Deprivation of Liberty Safeguards by the House of Lords Select Committee, and the extension of the remit of deprivation of liberty issues to many more adults who lack capacity to consent to care and treatment that deprives them of their liberty as a result of the decision of the Supreme Court in P v Cheshire West and Ors in 2014,.
In our view, the current legislation is not fit for purpose. It is clunky, time consuming, costly and difficult to explain to our clients and their families, frequently causing distress at times when emotions are already riding high.
The Law Commission has proposed a new scheme to ensure that the most vulnerable adults in society, who require a certain level of care and treatment to keep them safe, are properly safeguarded. The scheme is called ‘Protective Care’ and is split into three tiers:
- Supportive Care
- Restrictive Care & Treatment
- Deprivation of Liberty
Each tier carries with it different safeguards to ensure that as the restrictions on an individual become more serious, there is greater scrutiny of those restrictions and the individual receives better support. The new name tries to take away the feeling that individuals are being deprived of their liberty, and instead focuses on the positive safeguards that are supposed to be the intention of the scheme. It still sounds quite paternalistic, but I think my clients will understand the scheme far better if it isn’t called something that only adds to the feeling that they are imprisoned!
The proposals also set out a different regime for those who might be deprived of their liberty in a hospital, or palliative care setting. Since the increase in scope of the application of the Deprivation of Liberty Safeguards since Cheshire West, these settings have found it difficult to apply the current scheme. The current rule is that anyone dying whilst subject to the DOLS is considered to have died in state detention, so the change cannot come soon enough for families who face the bureaucracy of the system at the most difficult of times.
In a webinar presentation delivered by Community Care this morning, Tim Spencer-Lane, the lead lawyer, set out the plans and urged stakeholders to respond to the proposals over the next four months. We are hoping to host the Law Commission at some point in the early Autumn, so watch this space.
The Commission’s proposals refer to ‘Approved Mental Capacity Professionals’ who consider whether care is in an individual’s best interests and whether any restrictions or a deprivation of liberty is to be authorised, and Tribunals to appeal the decisions. The proposed scheme therefore appears to be more in line with the well established procedures and safeguards under the Mental Health Act. We need to look at the proposals carefully to see how they might work in the real world.With funding constraints, time pressures and an increase in vulnerable adults who fall under the scope of community care legislation, the success of the system will rely on resources and the quality of the people delivering it.
The Law Commission has also looked at the role of the advocate within the new scheme and suggests that the current advocacy system is amalgamated so that an individual benefits from one person supporting them if they need that independent support to ensure their voice is heard, and the rights they are supposed to benefit from are upheld.
We will be sharing our thoughts as we consider the proposals. We welcome your feedback and will encourage you to engage in any way you can.