After a public consultation in 2015, the Commission has recommended that the current deprivation of liberty procedure be replaced by Liberty Protection Safeguards. In contrast to DoLS, which simply authorise a ‘deprivation of liberty’, the new safeguards would
“authorise particular arrangements for a person’s care or treatment insofar as the arrangements give rise to a deprivation of liberty. This is an important difference. It focuses attention at the authorisation stage not simply on the binary question of whether a person should be deprived of their liberty or not, but on the question of the ways in which a person may justifiably be deprived of liberty.”
Importantly, this would cover more than one setting so that a fresh application would be unnecessary for say a planned admission to hospital.
In total the Commission makes 44 recommendations and they are set out in Appendix C of the report. They are summarised in the accompanying press release broadly as follows:
- enhanced rights to advocacy and periodic checks on the care or treatment arrangements for those most in need
- greater prominence given to issues of the person’s human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised
- extending protections to all care settings such as supported living and domestic settings –therefore removing the need for costly and impractical applications to the Court of Protection
- widening the scope to cover 16 and 17 year olds and planned moves between settings
- cutting unnecessary duplication by taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions
- extending who is responsible for giving authorisations from councils to the NHS if in a hospital or NHS health care setting
- a simplified version of the best interests assessment which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised
- recommends a wider set of reforms which would improve decision-making across the Mental Capacity Act. This is not just in relation to people deprived of liberty
- all decision makers would be required to place greater weight on the person’s wishes and feelings when making decisions under the Act
- professionals would also be expected to confirm in writing that they have complied with the requirements of the Mental Capacity Act when making important decisions – such as moving a person into a care home or providing serious medical treatment
A draft Mental Capacity (Amendment) Bill can be found in Appendix A.
You can read the full report on the DoH website here and the accompanying press release here.