Deprivation of Liberty Safeguards update

Law Commission interim statement on DoLS

The Law Commission has published an interim statement on mental capacity and deprivation of liberty following its recent consultation which closed on 2 November 2015. Click here to read the statement in full.

The interim statement provides an update on the key issues which have emerged during the consultation and set out some of the initial conclusions of the Law Commission. The statement indicates that the Law Commission has concluded that legislative change is the only satisfactory solution to the practical problems encountered with the DoLS process. The decision in Cheshire West has increased DoLS authorisation applications tenfold and DoLS was never designed to deal with these increased numbers.

The final report and draft legislation will be published by the end of 2016 at which point it will be for the Government to decide how the recommendations will be taken forward.

The Law Commission propose to recommend a more straightforward, streamlined and flexible scheme for authorising a deprivation of liberty. Of note to commissioners, the responsibility for establishing the case for a deprivation of liberty will be shifted onto the commissioning body that is arranging the relevant care or treatment and away from the care provider.

All those deprived of their liberty will be eligible for safeguards to secure the protection of their rights under Article 5. An example is that all those deprived of their liberty together with family members and advocates will have rights to seek reviews of their deprivation of liberty and bring legal proceedings to challenge it.

To avoid unnecessary duplication it is proposed that, where they exist, existing care plans and other assessments can be used as part of the process.

The Law Commission are considering whether a defined group of people should receive independent oversight of their deprivation of liberty as it would not be proportionate or affordable to provide such an oversight to all  those caught.

It is also proposed that all deaths of patients subject to a deprivation of liberty will be reported to a medical examiner who will be under a duty to make enquiries and refer the death to a Coroner if they form the opinion that the death was attributable to a failure of care. The Coroner will have the power but will not be obliged to conduct an inquest in an appropriate case. This will reduce the number of cases reported to the Coroner.

As a final issue, the Law Commission has not decided on a name for the new processes and further views are sought by 23 June 2016 on the name to be given to the new scheme.  Details of who to contact with suggestions are set out in the interim statement.

Staffordshire County Council v SRK and others

There has also been a recent Court of Protection decision which will impact on local authorities, deputies and the Court of Protection. The case of Staffordshire County Council v SRK and others held that an individual’s regime of private care and treatment and support was a deprivation of liberty that required authorisation.

In this case SRK had been involved in a car crash and had received substantial damages for his injuries. These were used to purchase an adapted property and to fund a private package of care and support. It had been argued that there was no state involvement in the package and that there was no one who could lawfully impose SRK’s care regime.

The Court held that a Court Order under section 16 of the MCA was required and that there was “state imputability”. The state ought to have known of the situation on the ground. A Court had awarded SRK damages and the Court appointed a deputy to manage the money. Therefore steps should be taken by the local authority to ensure they had knowledge of the care regime and if the least restrictive option of care for that person amounts to a deprivation of liberty an application be made to Court to authorise this.

This will place further strain on local authorities and highlights the need for a reform of the current systems.

Further information

If you have any queries on the issues that the interim statement raises, or the implications of this case and what it means for you, please do not hesitate to get in touch with Jeffrey Keeble.