Come in ‘DoLS’ your time is up.

The Deprivation of Liberty Standards (or “DoLS” for short) are unworkable, overly burdensome, too costly to administer and need to be replaced – so says The Law Commission in its Interim Statement on DoLS dated 25 May 2016.

As well as being overly legalistic and technical, DoLS have failed to deliver improved outcomes. The failure has only been compounded by the Supreme Court decision in Cheshire West (March 2014) which “gave a significantly wider definition of deprivation of liberty than that which had been previously understood to apply in the health and social care context.” Since Cheshire West there has been a tenfold increase in DoLS applications in England with only about 50% processed due to the severe administrative and financial constraints on local authorities.

What will replace DoLS? It is not altogether clear. The full Law Commission response to its July 2015 consultation is due by the end of this year together with a draft bill.  What is apparent, however, is that the current role exercised by local authorities in authorising DoLS will be scrapped.  Instead DoLS will be authorised by the commissioning body that is organising the care. That will mean a shift away from the provider in securing the safeguards, which will continue to be triggered by a deprivation of liberty.

The new regime will apply across all care settings (save for individuals admitted to in mental health hospitals for assessment and treatment where it is stated that detention should proceed under the Mental Health Act 1983). It will extend, therefore, to care homes, supported living and shared lives schemes, and domestic and private dwellings.

Some commentators in the sector have raised concerns about the apparent absence of the independent scrutiny which is currently exercised by independent best interests’ assessors.  Money appears to be the defining issue. Quelle surpris! There is mention of the possibility of “additional independent oversight” by an approved Mental Capacity Professional. However, the Interim Statement adds that “owing to the vast numbers of people considered to be deprived of their liberty following Cheshire West, it would not be proportionate or affordable to provide such oversight to all those caught by article 5 of the ECHR.”  This additional level of scrutiny would only apply to those subject to a greater infringement of their rights. Quite what that means remains to be seen.

There is also an issue about how commissioning bodies will exercise their proposed new role in relation to private payers where there will be no direct relationship.

The Interim Statement refers to the evidence that will be required for a DoLs authorisation from the commissioning body: a capacity assessment; objective medical evidence; arranging the provision of advocacy; consultation with family members and others; an existing care plan. It is hoped that this will promote greater compliance on the part of commissioning bodies in relation to the Mental Capacity Act which is currently highly variable.

There will be a right to ask for reviews of decisions and a right to legally challenge the same although it is not decided whether appeals would still be to the Court of Protection or a Tribunal.

Sensibly it is proposed that the new scheme will not fall within the definition of “State detention” in the Coroners and Justice Act 2009. Instead it is proposed that deaths of people subject to the new scheme will be referred to medical examiners who will be under a duty to make enquiries and refer the death to a coroner “if the medical examiner forms the opinion that the death was attributable, amongst other matters, to a failure of care.” The Coroner will have the power to conduct an inquest in an appropriate case but will not be obliged to do so.

Finally, given the understandably negative connation associated with “deprivation of Liberty”, The Law Commission grapples with the most difficult question of all: what to call the new scheme? It had suggested in its Consultation that it be called “protective care” but the original proposals have been radically altered (some might say watered down). The frontrunner is “liberty safeguards, closely followed by “capacity safeguards”. Start placing your bets!

Neil Grant

Partner Ridouts LLP 22 June 2016