The document summarizes proposals from the Law Commission to reform the Deprivation of Liberty Safeguards (DoLS) regime. Key elements include: 1) Creating a new framework called "Restrictive Care and Treatment" to replace DoLS, along with a "Supportive Care" category for those lacking capacity but not subject to restrictions. 2) Appointing Approved Mental Capacity Professionals to authorize care plans, assessments, and restrictions like deprivation of liberty. 3) Establishing multi-layered safeguards depending on the setting, from supportive care to restrictive care/treatment to deprivation of liberty. 4) Seeking to balance autonomy, protection, and appropriate scrutiny through a tailored scheme

1. @BJhealthlaw

2. @BJhealthlaw
Law Commission special

3. @BJhealthlaw
• surveying the wreckage
• salvaging the best bits
• overall principles – “protective care” and
supported decision making
– “supportive care”
– “restrictive care and treatment”
– DoL in care, Hospital and family home

4. @BJhealthlaw
• published - 7 July 2015
• consultation open - 2 November 2015
• respond to tim.spencer-lane@lawcommission.gsi.gov.uk
• our regional forums

5. • House of Lords select committee DoLS as
“not fit for purpose” (13 March 2014)
• Cheshire West (19 March 2014)
– “under continuous supervision and control
and not free to leave” – the ‘acid test’
– tens or hundreds of thousands are DoL
– DoLS swamped
– COP in confusion (NB Re X / Court of
Appeal)

6. @BJhealthlaw
• disconnected from MCA
• limited scope
• conflicts of interest in local authority role
• length and complexity
• terminology
• inadequacy at scale

7. @BJhealthlaw
• advocacy
• best interests assessors
• tribunals

8. @BJhealthlaw
Outcomes
focussed
Based in
MCA
“non-
elaborate”
ECHR
compliant
Tailored scheme

9. @BJhealthlaw
• takes Cheshire West defn of DoL
• focus is on appropriate scrutiny /
authority
• but not all designed round concept of DoL
- Article 8 as important as Article 5
• aim to level off the disparity between
DoL and Non DoL

10. @BJhealthlaw
DoL

11. @BJhealthlaw
Restrictive
Care and
Treatment
DoL

12. @BJhealthlaw
Supportive
Care
Restrictive
Care and
Treatment
DoL

13. own home supported living care home hospital mental health
DoL
Per Cheshire West
acid test
Restrictive care and
treatment
Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care
P lacks capacity to
consent and is in care
/accommodation

14. own home supported living care home hospital mental health
Mental Health
Setting
MHA
amendments
DoL
Per Cheshire West
acid test
Restrictive care and
treatment
Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care
P lacks capacity to
consent and is in care
/accommodation

15. own home supported living care home hospital mental health
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL
Per Cheshire West
acid test
Restrictive care and
treatment
Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care
P lacks capacity to
consent and is in care
/accommodation

16. own home supported living care home hospital mental health
Restrictive Care and Treatment in care
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL
Per Cheshire West
acid test
Restrictive care and
treatment
Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care
P lacks capacity to
consent and is in care
/accommodation

17. own home supported living care home hospital mental health
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL
Per Cheshire West
acid test
Restrictive care and
treatment
Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care
P lacks capacity to
consent and is in care
/accommodation

18. own home supported living care home hospital mental health
DoL in family home
AMCP to scrutinise
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL
Per Cheshire West
acid test
Restrictive care and
treatment
Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care
P lacks capacity to
consent and is in care
/accommodation

19. own home supported living care home hospital mental health
DoL in family home
AMCP to scrutinise
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
DoL in Hospital
Doctor to authorise
up to 28/7
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL
Per Cheshire West
acid test
Restrictive care and
treatment
Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care
P lacks capacity to
consent and is in care
/accommodation

20. @BJhealthlaw
• Mental Health Act to be amended to deal
with interface issues – informal in
patients, lacking capacity to consent to
be there and not objecting to treatment

21. own home supported living care home hospital mental health
DoL in family home
AMCP to scrutinise
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
DoL in Hospital
Doctor to authorise
up to 28/7
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL
Per Cheshire West
acid test
Restrictive care and
treatment
Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care
P lacks capacity to
consent and is in care
/accommodation

22. @BJhealthlaw
“is intended to provide a suitable
protection for those people who are in a
vulnerable position, but not yet subject to
restrictive forms of care and treatment
(including DoL) – in other words a
preventative set of safeguards”

23. @BJhealthlaw
• where P lacks capacity and is moving into
[supported living / care home / shared
lives]
or
• P is in such a setting and loses capacity

24. @BJhealthlaw
• LA must keep under review…
• care plans must include a record of
capacity and any restrictions
• discretion to appoint an AMCP
• advocate or appropriate person must be
appointed to ensure P has access to
appeal

25. @BJhealthlaw
• greater investment in supported decision-
making
• best interests decision making should be
amended to strengthen the priority given
to P’s wishes

26. own home supported living care home hospital mental health
DoL in family home
AMCP to scrutinise
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
DoL in Hospital
Doctor to authorise
up to 28/7
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL
Per Cheshire West
acid test
Restrictive care and
treatment
Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care
P lacks capacity to
consent and is in care
/accommodation

27. @BJhealthlaw
• where P lacks capacity to consent
• care in supported living / care home
involves a restrictive feature, from an
‘illustrative’ ie non-exhaustive list (para
7.31)
• by definition – wider than DoL

28. @BJhealthlaw
• P is under continuous
supervision and control, OR
• P is not free to leave – ie not
allowed out unaccompanied or
physically unable to leave
• barriers used to limit movement
• P is controlled by force / meds
• P objects to the care (verbally
or physically)
• significant restrictions on diet,
clothing, access to others or to
community

29. @BJhealthlaw
• AMCP must be appointed and decides on
authorisation of the care plan, after
appropriate (mainstream) assessments
• 12 months max, and power to impose
conditions or make recommendations
• a second AMCP must be appointed for
ongoing review
• right of appeal

30. @BJhealthlaw
• Approved Mental Capacity Professional
• Cf AMHP under MHA
• appointment by the local authority
• expect to build on the expertise and
independence of BIAs – but different role
• Required to arrange assessments and
“authorise” the care package including
any DOL

31. @BJhealthlaw
• broadly the RCAT scheme, but
• care plan must explicitly refer to an
authorise the DoL
• AMCP may need more / independent
assessments
• will need independent medical evidence

32. @BJhealthlaw
• AMCP can authorise RCAT (including a
DoL) up to 7 days, extendable to 14 days
• care homes lose power to authorise
themselves on urgent basis (cf Hospitals)

33. own home supported living care home hospital mental health
DoL in family home
AMCP to scrutinise
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
DoL in Hospital
Doctor to authorise
up to 28/7
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL
Per Cheshire West
acid test
Restrictive care and
treatment
Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care
P lacks capacity to
consent and is in care
/accommodation

34. @BJhealthlaw
• LC say going too far to have intervention
in family home for supportive care or
RCAT
• but still need scrutiny if it is a DoL
• referral to AMCP and same safeguards as
under RCAT

35. own home supported living care home hospital mental health
DoL in family home
AMCP to scrutinise
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
DoL in Hospital
Doctor to authorise
up to 28/7
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL
Per Cheshire West
acid test
Restrictive care and
treatment
Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care
P lacks capacity to
consent and is in care
/accommodation

36. @BJhealthlaw
• no supportive care / RCAT
• if a DoL is required – a doctor can
authorise up to 28 days – after that needs
referral to AMCP
• responsible clinician must be appointed
to ensure an appropriate care plan

37. @BJhealthlaw
First Tier Tribunal
Upper tribunal
Court of Protection

38. @BJhealthlaw
• applies to 16-18 year olds as well
• proposes amends to Coroners’ Rules
• care plan can include authorisation for
conveyance
• centrality of care plan – so need clarity of
decision making – best interests or
resource allocation?

39. @BJhealthlaw
• resources – enough AMCPs, advocates,
money, time?
• impact – if this is really about proper care
planning…
• complexity / duplication – still need a
concept of DoL

40. @BJhealthlaw
• uncertainty - family home
• role of other authorities – CCGs
• timing - draft legislation due “end of
2016”, implementation unlikely sooner
than 2018

41. @BJhealthlaw
• this is not the cavalry!
• a DoL still needs DoLS or COP for now
• LC’s wider view may mean more work in
future
• consultation is open to 2 November 2015
– get in touch!

42. @BJhealthlaw
Please get in touch if you have any questions
or wish to discuss the topics we’ve covered
further…
ben.troke@brownejacobson.com| 0115 976 6263