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Law Commission proposes replacement for "flawed" DoLS system

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A major overhaul of “deeply flawed” procedures for protecting people who are deprived of their liberty while being treated in a hospital or care home has been proposed by the Law Commission.

The commission’s consultation, published yesterday, said the current Deprivation of Liberty Safeguards (DoLS) placed an “increasing burden” on councils and failed to protect the rights of some people.

The paper suggests a number of ways of reducing the bureaucracy in the current DoLS system, including a proposal to reduce the requirement for six assessments in each case and expand the role of the best interests assessor which will reduce layers of bureaucracy developed by councils to sign off DoLS decisions.

Applications for Deprivations of Liberty Safeguards grew tenfold in 2014-15 following a Supreme Court ruling that said the safeguards covered a far greater number of people than was previously thought.

The commission proposed a new system to replace Deprivations of Liberty Safeguards called Protective Care.  

It would include assessments for people who lack capacity and live in or are considering a move to care homes, supported living and shared living accommodation but are not yet subject to restrictive forms of treatment or care.

The consultation suggested that anyone subject to Protective Care should have an advocate to represent their views. They would be able to challenge any restrictions in a tribunal, rather than in court.

There would also be a set of “restrictive care and treatment” safeguards, which are the direct replacement for the Deprivations of Liberty Safeguards. The paper said the system would focus on providing appropriate care for people who lack capacity and on supporting their carers, rather than on authorising deprivations of liberty.

Approvals under the system would be provided “with a minimum of bureaucracy” by an approved mental capacity professional, which is a new title and an expanded role for existing best interest assessors who assess proposed deprivations of liberty under the current system.

The consultation proposes a separate system for people living in hospitals and palliative care schemes to recognise that most people stay there temporarily.

An approved mental capacity professional would also need to approve deprivations of liberty for people living in family homes or other domestic environments. They would also be able to give temporary authority for emergency care and treatment pending a full assessment.

The consultation closes on 2 November 2015. The commission will submit a report of recommendations for change to the Lord Chancellor and a draft bill by the end of 2016. This follows an announcement by care minister Alistair Burt last month that he had ordered the commission to speed up its planned timetable for bringing forward proposed legislative changes.

Nicholas Paines QC, law commissioner for public law, said: “Experience with the Deprivation of Liberty Safeguards teaches us that a one-size approach does not fit all. The system of Protective Care we are proposing could provide meaningful safeguards to, as well as meeting the needs of, those individuals who, due to mental incapacity, cannot consent to their own care.

“The Deprivation of Liberty Safeguards have been called ‘not fit for purpose’. The reforms we are provisionally proposing would sweep away the DoLS and establish a new purpose for Protective Care – to provide appropriate care and better outcomes for disabled and older people and their families.”

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