Personal Injury, Serious Injury & Clinical Negligence

A new landscape of health care provision in England – Part 2

Deprivation of liberty safeguards

Jess Connelly, a Solicitor in the Court of Protection Team looks at how the changes introduced by the Health and Social Care Act 2012 will affect the care and support of mentally disordered and vulnerable adults in deprivation of liberty cases

Deprivation of liberty safeguards – transfer of responsibilities

The changes in the NHS taking effect on 1 April 2013 represent the largest shake up of the public health structure since its inception in 1948.

A welcome change is the transfer to local authorities and Clinical Commissioning Groups (CGC) of the responsibility for protecting mentally unwell individuals who have been deprived of their liberty.

In 2004 a decision of the European Court of Human Rights (ECHR) determined that individuals were being held in care homes and hospitals in the UK against their will and without a Human Rights compliant framework in place. As a result, the Deprivation of Liberty safeguards (DOLS) were incorporated into the Mental Capacity Act 2005 in 2009 and established a framework which applies to individuals who lack the mental capacity to consent to being placed in a care home or hospital.

If the individual says that they want to leave, or if their movement is being controlled or restricted, it may be that they have been deprived of their liberty. If this is the case, then their placement must be ‘Authorised’ by the supervisory body responsible for the care home or hospital.  Individuals may appeal against an Authorisation by applying to the Court of Protection for their circumstances to be reviewed.

With the abolition of Primary Care Trusts (PCT), the responsibility for any future Authorisations will lie with the local authority where the individual has ordinary residence. CCGs will have responsibility for dealing with matters relating to any Authorisation granted by its equivalent PCT.

Support for this change

To assist Local Authorities and CGCs with the practical changes, the Social Care Institute for Excellence (SCIE) has produced a good practice resource to ensure a smooth transition of responsibility. The guide sets out the following helpful information:

  • Each hospital managing authority will need to continue to actively understand the wider requirements of the Mental Capacity Act 2005.
  • Each hospital managing authority will need to become more familiar with practice concerning ordinary residence.
  • In preparation for the transfer, the ‘sending’ PCT supervisory body will need to identify the ‘receiving’ local authority for each patient subject to a Standard Authorisation. This will not necessarily be the local authority in which the hospital is situated.
  • Each local authority will need to be prepared to receive applications from hospitals in Wales or any part of England.
  • CCGs will be responsible for commissioning services in hospitals that comply with the Mental Capacity Act and the Deprivation of Liberty Safeguards.

These changes will no doubt bring the inevitable settling in problems: a clash of personalities as health care professionals hand over more responsibility to social care professionals; the rush to review any individuals who may have slipped the net before the transfer is made; and a lack of additional funds for already stretched local authorities to cover the new case load; but having responsibility and consistency of approach will enable local authorities to respond to local need more cohesively.

Further information relating to Deprivation of Liberty safeguards (DOLS) can be found here and recent developments in the case law will be covered in a series of articles on our elderly law blog in the near future.

A change for the better?

There are many criticisms that have been and will continue to be levied against these changes and the speed with which they have been implemented.   Many of the changes will work well, but will they save money and will they ensure that the vulnerable are better protected?  Only time will tell.

If you have any queries in relation to the issues raised in this blog, please contact Jess Connelly who will be pleased to provide further advice and assistance.