Liberty Protection Scheme

Despite the pressure of Brexit, the Government are making space to legislate for a replacement for the Deprivation of Liberty safeguards.  This has been a fated area of law since 1997 when the Bournewood case highlighted a gap in the law. A 49 year old man with autism became distressed at a day centre and was informally admitted to a psychiatric unit. He was not subject to a mental health section and lacked the capacity to consent to his residence in the unit. It was clear in 1997 that this was unlawful as the patient had no right of appeal or protection of his rights.

For some years, there was consideration of the use of mental health sections, but the Deprivation of Liberty safeguards were introduced as an amendment to the Mental Capacity Act. At the time of introduction, it felt as though as much was done as possible to minimise the number of people subject to such safeguards but there was some protection of rights in the bureaucratic process. Then Lady Justice Hale blew the situation out of the water in March 2014 by a judgement which simplified the process - is the person lacking capacity, under continuous supervision and not free to leave? Then that is a Deprivation of Liberty and needs the safeguards. Lady Justice Hale said that this vulnerable group need the highest level of protection. Unfortunately, local authorities were not resourced to deal with the massive increase - applications going from 13,000 a year to 217,325 in 2016-7. The situation could not stay as it was and the Law Commission made some recommendations.

The proposed Liberty Protection Scheme is a watered down version of the original proposals. One of the more concerning areas is the new scheme puts a lot of onus on care home managers to make decisions and arrange assessments. We know some care home providers are outstanding and will uphold rights but others will be daunted and unable to respond to this well. The bill also doesn't include the proposal to provide opportunity for legal action against care providers for unlawful deprivations of liberty. The bill's proposals offer less protection to this highly vulnerable group and seems to be an uneasy compromise.

Deprivation of liberty safeguards delayed

The proposed legal changes to the deprivation of liberty (DOL) safeguards have been put off until at least March. In the context of Brexit, the Government clearly don't see this as a priority. With the incredible pressure on adult social care at the moment, the streamlining of DOLs does seem like a big priority for local authorities.

Also, we have yet another version of the Care Act Statutory guidance to get to grips with - it is a shame it is such unhelpful and unclear guidance compared with Working Together to Safeguard Children from harm.