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The review of the deprivation of liberty safeguards Tim Spencer-Lane

The Law Commission's review of the Deprivation of Liberty Safeguards in England and Wales, criticism of current system, proposed reforms, and introduction of a new protective care scheme. Covering care homes, hospitals, mental health care, and more.

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The review of the deprivation of liberty safeguards Tim Spencer-Lane

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  1. The review of the deprivation of liberty safeguards Tim Spencer-Lane

  2. The LawCommission Independent body created by statute Role to keep under review the law in England and Wales, and recommend reform Two thirds of reports have been implemented Currently on our 12th programme of law reform The Law Commission

  3. Timetable for the Review

  4. Criticism of the DoLS length and complexity scale of the problem post-Cheshire West Ill-suited and inadequate terminology narrow focus on article 5 disconnect with the Mental Capacity Act local authority conflicts of interest limited scope “one-size-fits-all” approach lack of oversight and effective safeguards Joint duty on health and social services to provide after-care services for people discharged from compulsory detention in psychiatric hospital under section 3, 37, 45A, 47 or 48

  5. the new “protective care” scheme

  6. Principles of the new scheme

  7. Remit of the new scheme Care homes, supportive living, extra-care housing and shared lives arrangements Hospitals and palliative care Domestic and family settings Mental health care and treatment 16 and 17 year olds

  8. Care home, supported living & shared lives

  9. Early safeguards • “Supportive care” when a person is moving into (or already living in) the accommodation • Supportive care is based on confirmation that: • an assessment has taken place • the relevant legal procedures have been followed • care planning is in place • the care plan states the tenancy arrangements • LB Bill reforms? • rights to advocacy and an “appropriate person”

  10. Restrictive care and treatment person moving into (or already living in) care home, supported living or shared lives accommodation Restrictive care and treatment is being proposed The person lacks capacity to consent to the care and treatment

  11. What is “restrictive care and treatment”? Continuous or complete supervision and control Not free to leave Not allowed or unable (due to disability) to leave premises unassisted Use of barriers to limit the person to particular areas Control by physical force, restraints or medication (except for emergencies) Person objects to care or treatment Significant restrictions over diet, clothing or contact

  12. Safeguards An assessment must be carried out which is overseen by an AMCP AMCP has powers to set conditions and make recommendations AMCP keeps under review the restrictive care and treatment and monitors conditions Person and family have rights to request review Rights advocacy or “appropriate person”, and RPR Right to appeal to a tribunal

  13. The “Approved Mental Capacity Professional” builds on existing role and expertise of the Best Interests Assessor Responsible for oversight of assessments, compliance with conditions and restrictive care and treatment acting as independent decision-maker on behalf of the local authority regulated by the Health and Care Professions Council and Care Council for Wales

  14. Adult Social Care Project deprivations of liberty The care plan is the authority for the care provider to detain the person

  15. First-tier Tribunal • Based on the First-tier MH tribunal model • Key advantages are its existing knowledge base, accessibility, informality and efficiency. • Right of appeal to Upper Tribunal or Court of Protection • Do we need automatic reviews?

  16. the hospital and palliative care scheme

  17. Hospitals and palliative care deprivations of liberty can be authorised for up to 28 days in a hospital assessment made by clinician and certified by a registered medical practitioner. a named clinician must be appointed and a treatment plan produced rights to advocacy, reviews and tribunal within the 28 days further authorisations for a deprivation of liberty would require the agreement of an AMCP

  18. MHA interface • A new mechanism under the MHA to admit compliant incapacitated people to hospital • Safeguards include independent advocacy, second medical opinion for certain treatments and rights to appeal to the tribunal • Protective care could not authorise deprivation of liberty in hospital for psychiatric care

  19. Other key areas

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