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People with dementia and learning difficulties detained in care without checks due to ‘failing’ law: Law Commission

New system proposed to ensure that vulnerable people’s rights are respected

Thousands of vulnerable people with dementia and learning disabilities are being detained in hospitals and care homes without the appropriate checks, due to a law unfit for purpose according to the Law Commission.

Often those who lack the mental capacity to consent – like certain people with dementia or learning disabilities – need to be detained in a place like a hospital or care home when it is in their best interests. For such a deprivation of liberty a proper authorisation process should be in place to ensure that this is done lawfully.

But since a landmark legal case in 2014, which widened the definition of who was subject to the "Deprivation of Liberty Safeguards", local authorities have been under increased administrative pressures. As a result last year 100,000 people who required the authorisation did not receive it.

The Department of Health quickly recognised the issue, and asked the Law Commission to review the legal framework to ensure suitable protections were in place.

In a new report, the Law Commission has offered its recommendations – proposing a new system designed to ensure that vulnerable people are no longer denied their rights.

Law Commissioner Nicolas Paines QC said:

"It's not right that people with dementia and learning disabilities are being denied their freedoms unlawfully. There are unnecessary costs and backlogs at every turn, and all too often family members are left without the support they need.

"The Deprivation of Liberty Safeguards were designed at a time when considerably fewer people were considered deprived of their liberty. Now they are failing those they were set up to protect. The current system needs to be scrapped and replaced right away.

"We know there are enormous pressures on health and adult social care at the moment and our reforms will not only mean that everyone is given the protections they need, but could also deliver a saving to the taxpayer.  That's cash that can then be directly reinvested to support those most in need."

The Law Commission is recommending replacing the law with a new scheme, called the Liberty Protection Safeguards.

This would mean:

However, the Law Commission recognises that many people who need to be deprived of their liberty at home benefit from the loving support that close family can provide.

These reforms, which widen protections to include care or treatment in the home, are designed to ensure that safeguards can be provided in a simple and unobtrusive manner, which minimises distress for family carers.
Importantly, the Commission also 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.

Responding to the Law Commission's report, Chairman of the Local Government Association's Community Wellbeing Board, Cllr Izzi Seccombe, said:

"We have long highlighted the need to overhaul the system so that everyone who lacks mental capacity is at the heart of decisions made about their care.

"The current law is not fit for purpose, and we fully support the need for reform, and look forward to exploring the detail behind the Law Commission's recommendations. 

"Following the Supreme Court judgment in March 2014, there was a just under 70 per cent increase in completed assessments from councils between 2015/16 and the previous year, and a 380 per cent increase between 2014/15 and the year before. This increased activity has caused significant cost pressures on council budgets. 

"We look forward to working with government to learn from the Law Commission's review, and develop and implement a reformed scheme so that we are able to fund the work necessary to effectively protect the rights of some of the most vulnerable people in our society." 

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