Lesley Rushton, Head of Private Client and the Firm’s Court of Protection team considers the proposed changes to the Deprivation of Liberty Safeguards (DoLS) which seek to protect the vulnerable and which are of particular significance to older people receiving care.
The European Convention on Human Rights provides our fundamental right to liberty and security. Where it is proposed that a resident in a care home or a patient in a hospital should be deprived of their liberty, DoLS is the regulatory procedure that must be followed. DoLS aims to protect residents in care homes and patients in hospitals who lack capacity to make decisions about their own care and treatment. At present care homes and hospitals must obtain ‘standard authorisation’ from a Local Authority in order to deprive a person of their liberty. DoLS has been criticised for being overintrusive, expensive and bureaucratic. In March 2018 there was a reported backlog of around 125,630 uncompleted DoLS applications which means that many individuals may be unlawfully having their freedom restricted and receiving inappropriate care. July 2018 saw the publication of the Mental Capacity (Amendment) Bill which will see DoLS replaced by the Liberty Protection Safeguards (LPS). LPS brings considerable change and is said to be a more streamlined process. Concerns, however, have been raised.
LPS shifts responsibility for authorising a deprivation of liberty; for example, where an individual is residing in a hospital, responsibility will often fall to the hospital manager rather than the Local Authority as the supervisory body. The proposal also puts increased responsibility on care managers in care homes. DoLS currently only applies to care homes and hospitals, however, the proposed LPS will apply to deprivations of liberty in any setting including at a person’s home. Many consider that LPS would create a conflict of interest for care home managers who it is said will have increased responsibilities. Many are also sceptical as to whether the new regime will be successful in reducing the considerable backlog. Efforts to defeat the bill have been without success. The bill is now to be scrutinised by a committee of MPs. It is not clear how the transformation from DoLS to LPS will progress. What is clear is that the change will not be without significant debate and deliberation…
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