Welcome revisions to Law Commission’s DoLS proposals
RadcliffesLeBrasseur partner JONNY LANDAU says there is much to be welcomed in the Law Commission’s amended proposals for changes to the law regarding mental capacity and deprivation of liberty.
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The Law Commission has published an interim statement about its proposals regarding mental capacity and deprivation of liberty. There is much to be welcomed.
The initially proposed supportive care scheme, which would have applied to people who lack capacity but are not being deprived of their liberty, has been abandoned. In the context of care homes, perhaps not many people would have been caught by the regime because those who lack capacity are also very often not free to leave, and so are deprived of their liberty under the Cheshire West test. However, requiring care homes to assess whether the person falls into one of two possible legal schemes would have added confusion. The scheme would have also diverted resources from social care that could be better spent in other ways, for example meeting the additional costs of the national living wage.
The report also states that the responsibility for establishing the case for a deprivation of liberty should shift to the commissioner that is arranging the care, and away from the provider. The details of how this will work in practice are not provided in the statement. If, however, the intention is that public authorities rather than providers will be responsible for initiating the process, rather than providers completing application forms, that too is to be welcomed.
Those deprived of their liberty will have the right to seek reviews of their deprivation of liberty including bringing legal proceedings. They will also have comprehensive rights to advocacy.
The Law Commission has also abandoned proposals for a separate system for hospital settings, as well as its suggestion for new powers in the Mental Health Act for compliant patients lacking capacity. It was a case of the latter that led to the DoLS in the first instance so it ironic that the Law Commission now proposes that such cases should be managed under the existing Mental Health Act detention powers.
There is a suggestion in the report that additional safeguards would apply in respect of certain categories of persons, yet to be decided. Why this is thought necessary, particularly in the absence of any identified need, is not clear. It is hoped that the Law Commission, having clearly absorbed the consultation responses, will resist the temptation to unnecessarily complicate matters by introducing multiple schemes after all.
The Law Commission has also proposed legislative reform to provide that there will be no need for an inquest solely on the basis that the deceased was subject to the new scheme. This, too, is to be welcomed as Coroners’ Courts’ and providers’ resources have been stretched by dealing with the number of inquests required by the assumption that there was a legal obligation to hold an inquest in respect of people who died whilst subject to a DoLS authorisation.
No doubt, the lack of government appetite for costly reforms was influential in the Law Commission’s decision to moderate its proposals. However, the consultation responses were clearly important too.