Thousands of vulnerable people with dementia andlearning disabilities will be given better protection bya new law announced today by the Government.
The new Mental Capacity (Amendment) Bill, basedon Law Commission recommendations, brings inextra protections for those who lack the mental capacity to make decisions about their care.
It will bring forward a replacement to the Deprivation of Liberty Safeguards, a bureaucratic system ofprotections for those deemed to be deprived of theirliberty, which a Commission report criticised in 2017as “failing those they were set up to protect”.
Law Commissioner Nicholas Paines QC said:
“In our report we were clear that the Deprivation ofLiberty Safeguards needed to be replaced as a matterof pressing urgency.
“This new legislation, based broadly on our recommendations, will go a long way towards addressingthe flaws of the current system and better protect themost vulnerable in our society.”
The Deprivation of Liberty Safeguards (DoLS) are aset of protections for adults who lack the mental capacity to consent to being accommodated in a hospital or care home for care or treatment.
For example, a dementia patient may be kept in theircare home to prevent them from wandering off,which could put them in danger.
The DoLS are also supposed to protect the personand provide a means to challenge any such deprivation.
But in 2014 a House of Lords Committee criticisedthe DoLS as being overly bureaucratic and “not fit forpurpose”. At around the same time, a SupremeCourt decision, the Cheshire West decision, significantly widened the numbers of those vulnerable people considered to be deprived of their liberty.
As a result, health and social care services have beenunable to cope with the huge increase in cases andthe added administrative burden. Last year morethan 108,000 vulnerable people were being deprivedof liberty without any proper safeguard checks.
In March 2017, following extensive consultation, theLaw Commission called for the DoLS to be scrappedand replaced right away. The legal body recommended a replacement system, the Liberty Protections Safeguards.
This call was supported by the Joint Committee onHuman Rights report, which published a report inJune 2018 examining the Law Commission’s proposals, which said the current system is broken andthat urgent action is needed.
The ongoing work of the Independent Review of theMental Health Act led by Professor Sir Simon Wessely is also likely to lead to refinement and improvement in the operation of the scheme.