The review of the deprivation of liberty safeguards Tim Spencer-Lane

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The review of the deprivation of liberty
safeguards Tim Spencer-Lane
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The Law Commission
The Law Commission

• Independent body created by statute
• Role to keep under review the law in England and
  Wales, and recommend reform
• Two thirds of reports have been implemented
• Currently on our 12th programme of law reform

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Timetable for the Review
Stage 1 Pre consultation Stage 1 Pre consultation

Stage 2 Public Consultation Stage 2 Public Consultation
7 July 2015 Publication of consultation paper
July to October 2015 4 month public consultation

Stage 3 Final Report and Draft Bill Stage 3 Final Report and Draft Bill
Publication by the end of 2016 Legislation introduced in the next session of Parliament? Publication by the end of 2016 Legislation introduced in the next session of Parliament?
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Criticism of the DoLS

• length and complexity
• scale of the problem post-Cheshire West
• Ill-suited and inadequate terminology
• narrow focus on article 5
• disconnect with the Mental Capacity Act
• local authority conflicts of interest
• limited scope
• one-size-fits-all approach
• lack of oversight and effective safeguards

• Joint duty on health and social services to
  provide after-care services for people discharged
  from compulsory detention in psychiatric hospital
  under section 3, 37, 45A, 47 or 48

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the new protective care scheme
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Principles of the new scheme
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Remit of the new scheme

• Care homes, supportive living, extra-care housing
  and shared lives arrangements
• Hospitals and palliative care
• Domestic and family settings
• Mental health care and treatment
• 16 and 17 year olds

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Care home, supported living shared lives
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Early safeguards

• Supportive care when a person is moving into
  (or already living in) the accommodation
• Supportive care is based on confirmation that
• an assessment has taken place
• the relevant legal procedures have been followed
• care planning is in place
• the care plan states the tenancy arrangements
• LB Bill reforms?
• rights to advocacy and an appropriate person

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Restrictive care and treatment

1. person moving into (or already living in) care
   home, supported living or shared lives
   accommodation
2. Restrictive care and treatment is being proposed
3. The person lacks capacity to consent to the care
   and treatment

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What is restrictive care and treatment?

• Continuous or complete supervision and control
• Not free to leave
• Not allowed or unable (due to disability) to
  leave premises unassisted
• Use of barriers to limit the person to particular
  areas
• Control by physical force, restraints or
  medication (except for emergencies)
• Person objects to care or treatment
• Significant restrictions over diet, clothing or
  contact

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Safeguards

• An assessment must be carried out which is
  overseen by an AMCP
• AMCP has powers to set conditions and make
  recommendations
• AMCP keeps under review the restrictive care and
  treatment and monitors conditions
• Person and family have rights to request review
• Rights advocacy or appropriate person, and RPR
• Right to appeal to a tribunal

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The Approved Mental Capacity Professional

• builds on existing role and expertise of the Best
  Interests Assessor
• Responsible for oversight of assessments,
  compliance with conditions and restrictive care
  and treatment
• acting as independent decision-maker on behalf of
  the local authority
• regulated by the Health and Care Professions
  Council and Care Council for Wales

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Adult Social Care Project
deprivations of liberty
The care plan is the authority for the care
provider to detain the person
The AMCP will need to ensure objective medical expertise
Deprivations of liberty can be authorised in domestic and family settings
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First-tier Tribunal

• Based on the First-tier MH tribunal model
• Key advantages are its existing knowledge base,
  accessibility, informality and efficiency.
• Right of appeal to Upper Tribunal or Court of
  Protection
• Do we need automatic reviews?

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the hospital and palliative care scheme
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Hospitals and palliative care

• deprivations of liberty can be authorised for up
  to 28 days in a hospital
• assessment made by clinician and certified by a
  registered medical practitioner.
• a named clinician must be appointed and a
  treatment plan produced
• rights to advocacy, reviews and tribunal within
  the 28 days
• further authorisations for a deprivation of
  liberty would require the agreement of an AMCP

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MHA interface

• A new mechanism under the MHA to admit compliant
  incapacitated people to hospital
• Safeguards include independent advocacy, second
  medical opinion for certain treatments and rights
  to appeal to the tribunal
• Protective care could not authorise deprivation
  of liberty in hospital for psychiatric care

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Other key areas
Consolidation of advocacy Consolidation of advocacy Consolidation of advocacy New legal supported decision-making scheme New legal supported decision-making scheme New legal supported decision-making scheme New legal supported decision-making scheme New legal supported decision-making scheme
Reform of the best interests check-list Reform of the best interests check-list Reform of the best interests check-list Is a new criminal offence needed? Is a new criminal offence needed? Is a new criminal offence needed? Is a new criminal offence needed?
Continuation of RPR role (but not paid RPR) Continuation of RPR role (but not paid RPR) Continuation of RPR role (but not paid RPR) Continuation of RPR role (but not paid RPR) Reform of coroners legislation Reform of coroners legislation Reform of coroners legislation
Ability to consent to a future deprivation of liberty Ability to consent to a future deprivation of liberty Ability to consent to a future deprivation of liberty Ability to consent to a future deprivation of liberty Ability to consent to a future deprivation of liberty Regulation by CQC, CSSIW and HIW Regulation by CQC, CSSIW and HIW Regulation by CQC, CSSIW and HIW
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My contact details My contact details
Email tim.spencer-lane_at_lawcommission.gsi.gov.uk
Website www.lawcommission.justice.gov.uk