19.08.15
Deprivation of liberty safeguards need to be overhauled
Source: PSE Aug/Sep 15
Sam Cox (pictured), knowledge officer for legal and welfare rights at the Alzheimer’s Society, responds to the Law Commission’s proposals for a framework to replace what it calls the “deeply flawed” Deprivation of Liberty Safeguards (DoLS).
It is clear to the Alzheimer’s Society that the deprivation of liberty safeguards (DoLS) need to be overhauled. The vulnerable people who the system is meant to protect have been lost in the very process that is meant to protect them.
When first introduced, we saw poor implementation and a startling lack of awareness of DoLS. Since the Cheshire West ruling we are now seeing a system struggling to cope with increased demand. With the system as it stands and delays in assessments, we are concerned that the safeguards are not effective and people’s basic human rights are being violated. As a result, we welcome the Law Commission’s consultation and hope that any new system will work effectively as a safeguard and protect the rights of people with dementia.
Moving the process into care planning makes sense. Currently the system is disjointed, with people often leaving the hospital or care home before the assessment has taken place. The name change should also help with understanding of DoLS – currently the very term ‘deprivation of liberty’ can make families fearful of DoLS and often there are negative connotations before any assessment is even carried out.
The Alzheimer’s Society also sees many cases where there is a delay in families being able to hold a funeral if someone dies under a DoLS authorisation. This is due to the coroner’s inquest safeguard. Even without a delay, this measure can cause distress at a particularly emotional time, especially if the purpose is not communicated to families. Due to the increase in demand on coroners since Cheshire West, we have seen additional distress caused by delays. Some families have had to wait months to put their loved one to rest at what is already a difficult time.
This delay has also had an unintended impact on brain donation. To be used for dementia research, ideally a brain needs to reach a brain bank within 24 hours, and so the delays caused by inquests are affecting valuable research. Therefore, we welcome the proposals to give coroner’s discretion to release bodies early, as this should provide some flexibility to help families at this difficult time, and to also enable someone’s last wishes of providing their brain for research to be carried out.
Although overall the proposals are positive, we do have concerns with elements of the detail. One example is the proposal to streamline advocacy by removing the current ‘independent mental capacity advocates’ (IMCAs) and paid ‘relevant persons representatives’ (RPR) and instead rely upon the Care Act advocates. IMCAs and paid RPRs are highly trained professionals who work with the Mental Capacity Act (MCA) and DoLS, and who ensure the person is represented. They can also help families to understand and navigate the complex process of appeals.
We are concerned that the proposed replacement advocates will not have enough training or specialism, if this was to solely rest within the Care Act. Issues around capacity and deprivations of liberty are very complex. Trained professionals who understand the system are essential to protect vulnerable people.
We are also concerned that fewer people are entitled to advocacy under the Care Act than the current DoLS regime, so if the system follows the narrower Care Act criteria, family members may be expected to act as advocates in this complex legal area. DoLS cases involve the very basic rights of freedom of some of the most vulnerable people in our society, so it is essential they have a right to professional support, especially as the person is unable to represent themselves.
It is important for people to know that there is an effective, independent and timely appeals system in place, especially when discussing someone’s care. It is therefore essential that there is an effective tribunal system. We feel a paper-based system or a single member panel approach is not appropriate here.
The House of Lords Select Committee on the MCA also commented on how there was a lack of awareness and training amongst professionals of the MCA, including DoLS. Any new system needs to ensure that professionals are aware of it and understand how to implement it. There needs to be public awareness and information so that those affected and their families understand what the system is and why it is there.
Whilst the consultation proposes a welcome simpler system, it is likely that as many people with dementia will fall under the restrictive care and practice criteria as currently fall under DoLS. It is clear that adequate resource will need to be dedicated to the new system, which could face as many as 150,000 people annually. Without adequate resource or thought to implementation, it risks the same failures which have made DoLS unable to safeguard people’s rights in recent years.
The Law Commission’s consultation on Mental Capacity and Deprivation of Liberty is at: www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/