Deprivation of Liberty Safeguards were shown to be lacking in 2014 – proposed reforms can’t come soon enough
The Deprivation of Liberty Safeguards (DoLS) scheme, set out in the Mental Capacity Act 2005, was brought in to protect people who are deemed to lack capacity to consent to their care or treatment, by ensuring they are not deprived of their liberty for no legitimate reason.
The scheme aims to ensure that people are only deprived of their liberty when it is in their best interests and there is no other less restrictive way to provide necessary care and treatment. In theory, the scheme protects vulnerable people but it has become apparent that under this scheme, many in need of protection have been failed by the safeguarding system.
How has DoLS failed vulnerable people?
The DoLS scheme has been criticized for “rubber stamping” the decision already made by the care team rather than providing a safeguard. For example, an individual deemed to lack capacity under the Mental Capacity Act is not going to have DoLS protection from the start, when it is probably most needed.
In actual fact, the safeguarding system only steps in after the vulnerable person has been placed in a home by their local authority and that home applies to the authority for authorisation of a deprivation of liberty.
This backwards system leaves those most vulnerable unprotected and to add to that, following a Supreme Court decision in 2014, local authorities are inundated with DoLS applications.
How the failures with DoLS were shown
In 2014, the judgment in the Supreme Court case, Cheshire West, led to the definition of a deprivation of liberty being widened. This, in turn, led to a massive increase in the number of people considered to be deprived of their liberty. The resulting number of DOLS applications is reported to have increased tenfold in England since the Cheshire West judgment.
Sadly, this demonstrates a vast number of vulnerable people who were not previously protected when they should have been. Naturally, this increase in applications has caused local authorities to severely struggle and huge backlogs have built up.
It is reassuring that the problem with DoLS has been recognised and the Government sought advice from the Law Commission as to how legislation could be reformed. Better late than never but, interestingly, it was pointed out by the House of Lords Select Committee just before the Cheshire West case that the Deprivation of Liberty Safeguards were not used as often as they should be thus not protecting vulnerable individuals. The safeguards have also been considered to be overly complex and onerous.
It would appear things are moving in the right direction but not as quickly as they ought to. Especially given that, back in March 2017, the Commission reported that DoLS should be replaced as “a matter of pressing urgency” with a new scheme called the Liberty Protection Safeguards (LPS).
The new Safeguards which have been developed by the Law Commission are promised to help make sure that vulnerable people will get the care they need. They just need to be legislated as soon as possible.