New deprivation of liberty legislation launched as number of applications hits record high

The NHS will be able to make decisions to deprive people of their liberty under new law, health officials have announced.

The current Deprivation of Liberty Safeguards (DoLS) system has been heavily criticised, with a Government-commissioned review in 2017 calling for the system to be replaced as a matter of urgency.

In some circumstances, patients who lack the mental capacity to consent need to be detained in a place like a hospital or care home when it is in their best interests.

Under the current rules, the care home or hospital must apply for, and be granted, a DoLS authorisation from a local authority.

But a significant number have not been processed in the appropriate time.

There is a current backlog of 108,000 people whose safeguards have not been reviewed.

It comes after the number of applications hit record highs.

The applications can be made for people with dementia, serious mental health problems or learning difficulties if it is deemed they do not have the mental capacity to make decisions about their care.

The Department of Health and Social Care said a new law for England and Wales will mean that some of the most vulnerable people in society will be better protected.

It said that the Mental Capacity (Amendment) Bill, which has been introduced in the House of Lords, will also reduce the burden on local authorities and save an estimated £200 million a year.

In a statement, the Department said the Bill will: introduce a simpler process with more engagement with families and “swifter access to justice”, and allow the NHS, rather than local authorities, to authorise their patients, “enabling a more streamlined and clearly accountable process”.

It will also eliminate repeat assessments and authorisations when someone moves between a care home, hospital, and ambulances as part of their treatment, DHSC said.

A spokeswoman said the new system will be known as Liberty Protection Safeguards.

Care Minister Caroline Dinenage (pictured) said: “I want to ensure that the system works for everyone and ensures that individuals’ fundamental rights are protected while reassuring families their loved ones are getting good care.

“We know local authorities are under pressure, which is why these reforms are so important: to reduce the burden on councils so they can focus their resources where they are needed on the frontline.”

In 2017 a damning review by the Law Commission concluded that the legal measures designed to safeguard some people detained in care facilities are “failing those they were set up to protect”.

Commenting on the Bill, Law Commissioner Nicholas Paines QC said: “In our report we were clear that the Deprivation of Liberty Safeguards needed to be replaced as a matter of pressing urgency.

“This new legislation, based broadly on our recommendations, will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in our society.”

Figures from NHS Digital show that there were 217,235 applications for DoLS received during 2016/17 in England.

This represents an 11% rise on 2015/16 and is the highest figure since the measure was introduced in 2009.

Glen Garrod, president of the Association of Directors of Adult Social Services (ADASS), said: “Once enacted, it is hoped that this law will help ensure the protection of liberty of all people who lack mental capacity more effectively and efficiently than under the present Deprivation of Liberty Safeguards.

“A period of transition is likely to be needed to enable health and care staff and provider organisations to adapt to the new system.

“As part of this, it is essential that a fully-resourced programme, which will include training, is put in place to support the new process.”

Copyright (c) Press Association Ltd. 2018, All Rights Reserved. Picture (c) Dominic Lipinski / PA Wire.