House of Commons Library, October 2017
This briefing reviews Deprivation of Liberty Safeguards (DoLS) that were introduced into the Mental Capacity Act by the Mental Health Act 2007.
There have been recent changes affecting the DoLS. A Supreme Court judgement in 2014 significantly widened the definition of deprivation of liberty, meaning more people were subsequently considered to have their liberty deprived. There was a ten-fold increase in the number of deprivation of liberty applications following the judgment.
In March 2017, the Law Commission published a report and Draft Bill recommending an overhaul of the DoLS process. The Law Commission recommends that DoLS are repealed as a matter of urgency, and are replaced by a new scheme called the Liberty Protection Safeguards. The new safeguards intend to streamline the process for assessing whether a deprivation of liberty is necessary, and obtaining the required authorisation. The Government is due to publish its response to the recommendations.
Click here to view the briefing.
Local Government and Social Ombudsman, July 2017
This report finds that vulnerable people are being forced into situations against their will because care providers are not going through the proper processes. The report highlights concerns about the way some of the most vulnerable people in society are being treated when decisions are being made on behalf of people who lack mental capacity to choose how they are cared for.
Problems include assessments to determine whether someone has the capacity to make decisions for themselves, poor decision making when deciding on someone’s best interests, and not involving friends and families in the decision process. The Ombudsman’s investigations show that some councils and care providers do not properly understand the processes for making decisions on behalf of people who lack mental capacity.
The report offers advice and guidance to social care professionals on how to get things right when working with people who may lack mental capacity. It also provides questions councillors can use for scrutinising their own authorities to ensure people in their area are treated properly.
Click here to access the full report.
Law Commission, March 2017
This report presents recommendations by the Law Commission for a new system to replace Deprivation of Liberty Safeguards (DoLS) to ensure that the rights of vulnerable people are better protected.
Click here to view the full report.
Click here to access other documents from the consultation.
Department of Health, December 2015
The Department of Health has published its response to the Law Commission’s consultation on how the law should regulate deprivations of liberty (DoLS) for people who lack capacity to consent to their care and treatment arrangements. The consultation proposes that DoLS should be replaced by a new system called ‘protective care’. It also proposes that there should be a new code of practice. The Law Commission will publish its final recommendations by the end of 2016.
Click here to view the response.
Care Quality Commission, December 2015
The CQC have published their sixth annual monitoring report on how hospitals and care homes in England are using the Deprivation of Liberty Safeguards. Data from CQC’s specialist inspection regime shows that there is variation between providers. This means that people are not consistently receiving the protections of the Deprivation of Liberty Safeguards, which help to make sure that they are treated and cared for with dignity and respect, as much as possible in line with their own wishes.
Click here for further information.
Click here to download the report.
Care Quality Commission, 2 February 2015
The CQC have published the findings from their fifth annual report on the use of the Deprivation of Liberty Safeguards, which looks at the period 2013/14.
The findings of the report show:
The number of applications to use the safeguards rose over the year 2013/14, but dramatic rises followed in Q1 and Q2 of 2014/15, following the Supreme Court’s clarification that that a person lacking mental capacity to consent is deprived of their liberty if they are both not free to leave and under continuous supervision and control. Since this clarification, there has been an eight-fold increase in the number of applications.
Regional variation still exists
We continue to see regional variations in application rates.
- The safeguards are most often used to protect the rights of older people, who may be living with dementia so we expect to see more Deprivation of Liberty Safeguards applications in parts of the country with a relatively older population. However, even adjusting the figures to take account of demographic factors (for example, the relatively young population of London), variations have persisted.
- The rapid and unprecedented rise in applications since March 2014 is putting extra pressure on local authorities and creating backlogs.
- At the end of September 2014, there were still 19,429 applications where a decision was still to be made, while at the end of 2013/14 there were just 356 where a decision was still to be made.
Click here for further information and to download the report.
Community Care, 26 September 2014
A council multiply breached the human rights of a learning disabled woman after unlawfully depriving her of her liberty, due to practitioners’ ignorance of the Mental Capacity Act 2005…
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