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'Failing law': People with dementia and learning difficulties are detained in care without checks

Article By: Melissa McAlees

Thousands of vulnerable people with dementia and learning disabilities are being detained in hospitals and care homes without the appropriate checks, due to a "failing law unfit for purpose," the Law Commission has said.

Since a landmark legal case in 2014, which widened the definition of who was subject to the 'Deprivation of Liberty Safeguards' (DoLS) and triggered an increase in the number of cases, local authorities have been left "unable to cope."

As a result, 100,000 people who required the authorisation last year did not receive it.

Law Commissioner Nicolas Paines said: “It’s not right that people with dementia and learning disabilities are being denied their freedoms unlawfully. There are unnecessary costs and backlogs at every turn and all too often family members are left without the support they need.

"The Deprivation of Liberty Safeguards were designed at a time when considerably fewer people were considered deprived of their liberty. Now they are failing those they were set up to protect. The current system needs to be scrapped and replaced right away."

He added: "We know there are enormous pressures on health and adult social care at the moment and our reforms will not only mean that everyone is given the protections they need, but could also deliver a saving to the taxpayer. That’s cash that can then be directly reinvested to support those most in need."

'DoLS not fit for purpose'

The latest report commissioned by the Department of Health reviewed the Mental Capacity Act and the Deprivation of Liberty Safeguards; a set of protections for adults who lack the mental capacity to consent to being accommodated in a hospital or care home for care or treatment.

They are also supposed to provide a means to challenge any such deprivation. This can either be by the family or patient.

Since they were introduced the DoLS have been criticised for being "overly complex" and "excessively bureaucratic."

In March 2014, a House of Lords Select Committee published a detailed report concluding that the DoLS were "not fit for purpose" and recommended that they be replaced.

At the same time, a case in the UK Supreme Court held that greater numbers of people failed to be dealt with under the Deprivation of Liberty Safeguards system than had previously been thought.

This has placed increasing burdens on local authorities and health and social care practitioners administering the DoLS.

The report shows that hospitals and care homes in England made 195,840 DoLS applications in 2015-16 – more than 14 times the 13,700 in 2013-14.

It also found that an increasing number of DoLS referrals were being left unassessed and statutory time-scales were being "routinely breached."

In England, out of the 195,840 DoLS referrals during 2015-16, only 43 per cent were completed in the year. Of those, only 29 per cent were completed within the 21-day time-limit set in regulations.

Commissioner's recommendations

Following public consultation, the Law Commission is recommending replacing the law with a new scheme known as Liberty Protection Safeguards. This would ensure that vulnerable people are no longer denied their rights and would mean:

• Enhanced rights to advocacy and periodic checks on the care or treatment arrangements for those most in need

• Greater prominence given to issues of the person’s human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised

• Extending protections to all care settings such as supported living and domestic settings – removing the need for costly and impractical applications to the Court of Protection

• Widening the scope to cover 16 and 17 year olds and planned moves between settings

• Cutting unnecessary duplication by taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions

• Extending who is responsible for giving authorisations from councils to the NHS if in a hospital or NHS health care setting

• A simplified version of the best interests assessment which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised.

Reforms ensure safeguards are provided in an unobtrusive manner

However, the Law Commission recognises that many people who need to be deprived of their liberty at home benefit from the loving support that close family can provide.

These reforms, which widen protections to include care or treatment in the home, are designed to ensure that safeguards can be provided in a simple and unobtrusive manner, which minimises distress for family carers.

The Commission also recommends a wider set of reforms which would improve decision-making across the Mental Capacity Act. This is not just in relation to people deprived of liberty.

All decision makers would be required to place greater weight on the person’s wishes and feelings when making decisions under the Act.

Professionals would also be expected to confirm in writing that they have complied with the requirements of the Mental Capacity Act when making important decisions – such as moving a person into a care home or providing serious medical treatment.

The Law Commission estimates that the Liberty Protection Safeguards would cost £236m a year in total and save around £10m, which could be reinvested into adult social care services.

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