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Private Client Law

Law Commission , 17 MAR 2017

People with dementia and learning difficulties detained in care without checks due to 'failing' law, says Law Commission

People with dementia and learning difficulties detained in care without checks due to 'failing' law, says Law Commission

Capacity and Deprivation of Liberty report published by Law Commission recommends replacing DoLS with a new scheme, called the Liberty Protection Safeguards

Thousands of vulnerable people with dementia and learning disabilities are being detained in hospitals and care homes without the appropriate checks, due to a law unfit for purpose according to the Law Commission.

Often those who lack the mental capacity to consent – like certain people with dementia or learning disabilities – need to be detained in a place like a hospital or care home when it is in their best interests. For example, a dementia patient may be kept in their care home to prevent them from wandering off, which could put them in danger. This is known as a deprivation of liberty and a proper authorisation process should be in place to ensure that this is done lawfully.

But since a landmark legal case in 2014, which widened the definition of who was subject to the 'Deprivation of Liberty Safeguards', local authorities have been under increased administrative pressures. As a result last year 100,000 people who required the authorisation did not receive it.

The Department of Health quickly recognised the issue, and asked the Law Commission – an independent body set up to reform the law – to review the legal framework to ensure suitable protections were in place.

Now in a new report published today, the Law Commission has offered its recommendations – proposing a new system designed to ensure that vulnerable people are no longer denied their rights.

Law Commissioner Nicolas Paines QC said:

'It’s not right that people with dementia and learning disabilities are being denied their freedoms unlawfully. There are unnecessary costs and backlogs at every turn, and all too often family members are left without the support they need.

The Deprivation of Liberty Safeguards were designed at a time when considerably fewer people were considered deprived of their liberty. Now they are failing those they were set up to protect. The current system needs to be scrapped and replaced right away.

We know there are enormous pressures on health and adult social care at the moment and our reforms will not only mean that everyone is given the protections they need, but could also deliver a saving to the taxpayer. That’s cash that can then be directly reinvested to support those most in need.'

Creating liberty protections for everyone 

The Deprivation of Liberty Safeguards (DoLS) are a set 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, they are intended to provide a check to ensure that it is right that someone with dementia is locked in their room overnight to prevent them wandering off into potentially dangerous situations.

The DoLS are also supposed to provide a means to challenge any such deprivation. This can either be by the family or patient.

In 2014 a Supreme Court 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 been unable to cope with the huge increase in cases and the added administrative burden.

Applications have gone up dramatically with official figures showing that hospitals and care homes in England made 195,840 DoLS applications in 2015-16 - more than 14 times the 13,700 in 2013-14.

An increasing number of DoLS referrals are also being left unassessed and statutory time-scales are being routinely breached. In England out of the 195,840 DoLS referrals during 2015-16, only 43% were completed in the year. Of those only 29% were completed within the 21 day time-limit set in regulations.

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Deprivation of Liberty

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Elder Law Journal

Elder Law Journal

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The Department for Health responded to the situation swiftly and asked the Law Commission to review the law to ensure suitable protections were in place. Now following public consultation, the Law Commission is recommending replacing the law with a new scheme, called the Liberty Protection Safeguards.

This would mean:
  • enhanced rights to advocacy and periodic checks on the care or treatment arrangements for those most in need
  • greater prominence given to issues of the person’s human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised
  • extending protections to all care settings such as supported living and domestic settings –therefore removing the need for costly and impractical applications to the Court of Protection
  • widening the scope to cover 16 and 17 year olds and planned moves between settings
  • cutting unnecessary duplication by taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions
  • extending who is responsible for giving authorisations from councils to the NHS if in a hospital or NHS health care setting
  • a simplified version of the best interests assessment which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised.
However, the Law Commission recognises that many people who need to be deprived of their liberty at home benefit from the loving support that close family can provide.

These reforms, which widen protections to include care or treatment in the home, are designed to ensure that safeguards can be provided in a simple and unobtrusive manner, which minimises distress for family carers.

Importantly, the Commission also recommends a wider set of reforms which would improve decision-making across the Mental Capacity Act. This is not just in relation to people deprived of liberty.

All decision makers would be required to place greater weight on the person’s wishes and feelings when making decisions under the Act.

Professionals would also be expected to confirm in writing that they have complied with the requirements of the Mental Capacity Act when making important decisions – such as moving a person into a care home or providing serious medical treatment.

Click here to download the full Law Commission report: Mental Capacity and Deprivation of Liberty

An article examining the key recommendations will be published in the April issue of Family Law.