The review of the deprivation of liberty safeguards Tim Spencer-Lane

The Law Commission  Independent body created by statute  Role to keep under review the law in England and Wales, and recommend reform  Two thirds of reports have been implemented  Currently on our 12 th programme of law reform The Law Commission

Timetable for the Review Stage 1: Pre consultation Stage 2: Public Consultation 7 July 2015Publication of consultation paper July to October month public consultation Stage 3: Final Report and Draft Bill Publication by the end of 2016 Legislation introduced in the next session of Parliament?

Criticism of the DoLS Joint duty on health and social services to provide after-care services for people discharged from compulsory detention in psychiatric hospital under section 3, 37, 45A, 47 or 48  length and complexity  scale of the problem post-Cheshire West  Ill-suited and inadequate terminology  narrow focus on article 5  disconnect with the Mental Capacity Act  local authority conflicts of interest  limited scope  “one-size-fits-all” approach  lack of oversight and effective safeguards

the new “protective care” scheme

Principles of the new scheme Delivers improved outcomes An MCA based scheme A non elaborate scheme ECHR compliant Supportive of the UNCRPD

 Care homes, supportive living, extra-care housing and shared lives arrangements  Hospitals and palliative care  Domestic and family settings  Mental health care and treatment  16 and 17 year olds Remit of the new scheme

Care home, supported living & shared lives

Early safeguards  “Supportive care” when a person is moving into (or already living in) the accommodation  Supportive care is based on confirmation that: an assessment has taken place the relevant legal procedures have been followed care planning is in place the care plan states the tenancy arrangements  LB Bill reforms?  rights to advocacy and an “appropriate person”

Restrictive care and treatment 1.person moving into (or already living in) care home, supported living or shared lives accommodation 2.Restrictive care and treatment is being proposed 3.The person lacks capacity to consent to the care and treatment

What is “restrictive care and treatment”?  Continuous or complete supervision and control  Not free to leave  Not allowed or unable (due to disability) to leave premises unassisted  Use of barriers to limit the person to particular areas  Control by physical force, restraints or medication (except for emergencies)  Person objects to care or treatment  Significant restrictions over diet, clothing or contact

Safeguards  An assessment must be carried out which is overseen by an AMCP  AMCP has powers to set conditions and make recommendations  AMCP keeps under review the restrictive care and treatment and monitors conditions  Person and family have rights to request review  Rights advocacy or “appropriate person”, and RPR  Right to appeal to a tribunal

The “Approved Mental Capacity Professional”  builds on existing role and expertise of the Best Interests Assessor  Responsible for oversight of assessments, compliance with conditions and restrictive care and treatment  acting as independent decision-maker on behalf of the local authority  regulated by the Health and Care Professions Council and Care Council for Wales

Adult Social Care Project Deprivations of liberty can be authorised in domestic and family settings The care plan is the authority for the care provider to detain the person deprivations of liberty The AMCP will need to ensure objective medical expertise

First-tier Tribunal  Based on the First-tier MH tribunal model  Key advantages are its existing knowledge base, accessibility, informality and efficiency.  Right of appeal to Upper Tribunal or Court of Protection  Do we need automatic reviews?

the hospital and palliative care scheme

Hospitals and palliative care  deprivations of liberty can be authorised for up to 28 days in a hospital  assessment made by clinician and certified by a registered medical practitioner.  a named clinician must be appointed and a treatment plan produced  rights to advocacy, reviews and tribunal within the 28 days  further authorisations for a deprivation of liberty would require the agreement of an AMCP

MHA interface  A new mechanism under the MHA to admit compliant incapacitated people to hospital  Safeguards include independent advocacy, second medical opinion for certain treatments and rights to appeal to the tribunal  Protective care could not authorise deprivation of liberty in hospital for psychiatric care

Other key areas Consolidation of advocacy New legal supported decision-making scheme Reform of the best interests check-list Is a new criminal offence needed? Continuation of RPR role (but not paid RPR) Reform of coroners legislation Ability to consent to a future deprivation of liberty Regulation by CQC, CSSIW and HIW

My contact details: Websitewww.lawcommission.justice.gov.uk