Law Commission releases Interim Statement on DoLS
The Law Commission have today released its interim statement on the review of the Deprivation of Liberty Safeguards (DoLS). The statement reflects on the views of many, including VoiceAbility, and features the right to advocacy as part of its conclusions.
VoiceAbility, along with 582 other stakeholders, took the opportunity to feed into the Commission’s consultation, focussing on the role of advocacy, RPR and appropriate persons.
We welcome the clarity on many of the points we raised throughout our own submission and are pleased to see how strongly the right to an independent advocate is seen. We continue to monitor the situation and are open to further discussions with the Law Commission. We look forward to the draft legislation before the end of the year.
The statement has summarised the responses received, the key messages and interim conclusions:
- Brand new - There is a compelling case for replacing the DoLS through legislation as a matter of priority. The DoLS are overly technical and have failed to deliver improved outcomes for people. They are also not designed to deal with the number of people currently considered to be deprived of their liberty.
- Financing - There is a commitment that, although any new scheme should reduce the administrative burden and associated costs, the Law Commission do not accept that safeguards should be reduced to the bare minimum. Any new scheme should ensure that fundamental reforms, such as the right to advocacy, are properly financed.
- Commissioning - A more straightforward scheme is proposed to authorise a deprivation of liberty. The responsibility for establishing a deprivation of liberty shifted to the commissioner (e.g. NHS or local authority). The commission would also be required to arrange the provision of advocacy where needed.
- Right to Challenge - All those deprived of their liberty would be eligible for safeguards including advocacy. They will also have the right to challenge the deprivation of liberty.
- Care Act processes - where assessments, plans and reviews have been undertaken under the Care Act 2014, those can be used as part of the DoLS rather than separate processes taking place. This will avoid unnecessary duplication of work.
- Greater voice - The Mental Capacity Act will be amended in such a way that any decision to remove someone from their home is given proper consideration. The person’s wishes and feelings will be given greater priority than they are currently.
- Mental Health Act - There will be no changes to the Mental Health Act.
- Coroners and Justice Act - The new scheme should be removed from the Coroners and Justice Act 2009. This means that deaths of people subject to DoLS are reported to medical examiners. They will be under a duty to make enquiries and refer the death to a coroner, who will have the power to conduct an inquest.
Finally, the name…
The term ‘Deprivation of Liberty Safeguards’ is widely criticised and the Commission had proposed the term ‘Protective Care’ instead. This has also been criticised and other terms suggested, including ‘liberty safeguards’ and ‘capacity safeguards’.
The Law Commission is seeking further views and suggestions on the future name used. If you have a suggestion, please email email@example.com by 23 June 2016.