The Law Commission for England and Wales recently carried out a review of the law relating to deprivation of liberty to ensure that suitable protections are in place within the legislative framework.

Deprivation of Liberty

Deprivation of liberty occurs when people who lack the mental capacity to consent, for example because of dementia, need to be detained in a place like a hospital or care home when it is in their best interests. Obviously, a proper authorisation process needs to be in place to ensure this process is carried out lawfully.

A landmark legal case in 2014 widened the definition of who was subject to the “Deprivation of Liberty Safeguards”, and since then local authorities have been under increased administrative pressures. As a result last year 100,000 people who required the authorisation did not receive it.

Liberty Protection Safeguards

This prompted the review by the Law Commission, which has now published a report setting out a proposed new system called the Liberty Protection Safeguards, which is designed to ensure that vulnerable people are no longer denied their rights.

The proposed system includes:

• 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 to 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 –therefore removing the need for costly and impractical applications to the Court of Protection,
• extending who is responsible for giving authorisations from councils to the NHS if in a hospital or NHS health care setting, and
• 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.

“It’s not right that people with dementia and learning disabilities are being denied their freedoms unlawfully,” commented Law Commissioner Nicolas Paines QC. “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,” he added. “Now they are failing those they were set up to protect. The current system needs to be scrapped and replaced right away.”

Law Society Response

Responding to the Law Commission’s proposals, the Law Society of England and Wales has acknowledged the need for a simpler set of safeguards to protect the growing number of vulnerable people unable to give informed consent when they are confined to hospital or a care home to receive the care they need.

"As our population ages and the number of people who need long-term care grows, we think the existing measures to protect people who lack mental capacity are not fit for purpose,” said Law Society president Robert Bourns.

"We would welcome streamlined DoLS to provide vigorous protection to those who are after all some of the most vulnerable people in our society,” he added. “Any new scheme should strengthen vulnerable individuals' ability to challenge measures that are overly restrictive or abusive.”

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