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Providing protective care to people unable to consent to treatment

Providing protective care to people unable to consent to treatment

Law Commission | Law Commission

3 min read Partner content

In a consultation opening today the Law Commission considers the existing Deprivation of Liberty Safeguards (DoLS).

The Mental Capacity Act aims to protect people who lack mental capacity but need to be deprived of liberty in order to receive appropriate care and treatment in hospitals and care homes. But the safeguards are not meaningful for disabled and older people and their families, local councils and the NHS are struggling to meet their obligations under the law, and people who live in other settings – such as supported living – are being left unprotected.

In a consultation opening today the Law Commission considers the existing Deprivation of Liberty Safeguards (DoLS), and how they can be replaced with a new scheme that achieves better, more appropriate outcomes for people with care and support needs and reduces unnecessary burdens on local councils and the NHS. The Commission also considers the safeguards that are necessary for those receiving care and treatment at home and in other family and domestic settings.

The DoLS were intended to provide a process for ensuring that people who lack capacity to consent to their care are deprived of their liberty only if it is in their best interests. Assessments of their capacity are made independently of the hospital or care home, and decisions can be challenged by appeal to the Court of Protection.

But the system is technical and cumbersome and, since a Supreme Court judgment broadened the definition of “deprivation of liberty”, it has placed increasing burdens on local authorities and health and social care practitioners. More importantly the DOLS are not meaningful for disabled and older people and their families, and fail to protect their rights.

The Commission’s consultation concludes that the DoLS are “deeply flawed” and need to be overhauled. It proposes that the DoLS be replaced with a new system of Protective Care. It suggests that safeguards should be extended to people living in supported environments or at home, as well as those in other hospital settings such as AE and palliative care, and anyone subject to Protective Care should be provided with an advocate to represent their views and wishes.

Capacity assessments under the current system are made by Best Interest Assessors. The Commission is seeking views on whether this pivotal role should be given professional status as Approved Mental Capacity Professionals and regulated in the same way as other care professions. Under the Commission’s provisional proposals, Approved Mental Capacity Professionals would be able to authorise individual care plans and place conditions on the provision of care and treatment. 

The Commission is also proposing that appeals should no longer be heard centrally by the Court of Protection but locally by a specialist tribunal, which includes medical and mental health practitioners, as well as “lay representation”, which could include service users.

Nicholas Paines QC, Law Commissioner for public law, said:

“Experience with the Deprivation of Liberty Safeguards teaches us that a one-size approach does not fit all. The system of Protective Care we are proposing could provide meaningful safeguards to, as well as meeting the needs of, those individuals who, due to mental incapacity, cannot consent to their own care.

“The Deprivation of Liberty Safeguards have been called “not fit for purpose”. The reforms we are provisionally proposing would sweep away the DoLS and establish a new purpose for Protective Care – to provide appropriate care and better outcomes for disabled and older people and their families.”

The consultation is open until 2 November 2015.

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