Deprivation of Liberty Safeguards – A time of change

Sam CoxKnowledge Officer (Legal and

Welfare Rights)

Introduction

• What are DOLS?• Is change needed - problems with the current

system• The Law Commission consultation

What are DOLS?

• An independent check to ensure that where a person’s care results in them being deprived of their liberty it is the right thing to do

• It is a process of making this check• They only apply to care homes and hospitals

What safeguards do theyprovide?• The independent assessment by 2

professionals• If authorised will be appointed a RPR• Enable appeals• Renewal date set• Coroner’s inquest

A time for change?

Human rights system will cripple social care

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THE

SUN SHINE

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Families left distraught after being told they must wait months to bury loved ones

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THE

SUN SHINE

Law now impossible to follow leaving many people without rights

House of Lords say DOLS are ‘not fit for purpose’

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Problems

• System went from 12,400 applications in 2013-14 to over 113,000 in 2014-15

• Over 50% are breaching legal time scales• Funding and resources• Involvement of family• Still being misused, and are still

misunderstood• Coroner’s inquests

The Consultation

Law Commission

• Commissioned by government to conduct a review and propose new DOLS legislation

• Consultation this summer on draft new DOLS system

• End of 2016 will publish a report and draft new bill (this has changed from 2017)

• This will then go back to parliament to (maybe) be enacted

The new system: ‘Protective care scheme’• Supportive care• Restrictive care and treatment• Separate system for hospitals and palliative

care

Supportive care: Criteria

• Those moving into (or already living in) – care home, supported living or shared lives accommodation

• Vulnerable people but not deprived of their liberty

• Lack capacity to decide where they will live

Supportive Care – Safeguards• Confirmation that all legal safeguards have

been followed (e.g. MCA, CA)• Oversight of tenancy arrangements –

confirmation in care plan• Care planning safeguards must be in place• Ongoing monitoring and review• Right to advocacy and an appropriate person

under the CA must be appointed

Restrictive care and treatmentThis is the direct replacement for DOLS – it aims to cover slightly more cases then just deprivation of liberty cases

Restrictive care and treatment: Criteria• The person is moving into (or already living in)

a care home, supported living or shared lives accommodation

• Restrictive care and treatment is being proposed

• Person lacks capacity to consent to the care and treatment

Restrictive care and treatment: Safeguards• An assessment takes place which is overseen by

an independent professional• Power to recommend conditions and make

recommendations• Care planning safeguards• Ongoing monitoring and review• Right to appeal and tribunal• Rights to CA advocacy and an ‘appropriate

person’ and RPR

The ‘Approved Mental Capacity Professional’ (AMCP)• Builds on BIA• All assessments referred to AMCP – note

though can delegate assessments• AMCP is responsible for ongoing oversight of

the restrictive care and treatment• Acting as an independent decision-maker on

behalf of the local authority• Regulated by the Health and Care Professional

Council and the Care Council for Wales

Deprivations of Liberty

• The care plan is the authority for the care provider to detain the person

• AMCP will need to ensure the objective medical expertise

Right to appeal

Proposals:•A tribunal system similar to the MHA•First tier tribunal – right of access•Then right of access to upper tribunal or CoP (consultation question)•Automatic reviews for restrictive care and practice cases when no referral has been made – time limits discussed in the consultation

Hospitals and Palliative careProposal of a bespoke system•May deprive someone of liberty for up to 28 days in a hospital based on the report of a registered medical practitioner•A responsible clinician must be appointed and a care plan produced•Further authorisations for a DOL would require agreement from a AMCP

Effect on advocacy

Proposals includes:•Replacing IMCAs with CA advocates and appropriate persons•Scrapping paid RPRs – still keeping unpaid ones

Will this work?

Other key issues:

• Legal supportive decision making scheme• Reforms of the BI checklist – prioritising the

person’s wishes and feelings• Deprivation of liberty at home

• Reform of coroner’s legislation – enabling more coroner’s discretion

• MHA interface• Advance decision-making and DOLS – ability

to consent to a future DOL• Governance and oversight by CQC, CSSIW and

HIW

Conclusions

• Are problems with the current system• BUT – does the proposed new system solve

these?• Consultation closes 2 November