House of Commons Select Committee Inquiry into the right to freedom and safety: reform of deprivation of liberty safeguards

23 March 2018
Dementia

Submission by the BGS February 2018: The British Geriatrics Society’s view is that the current deprivation of liberty safeguards (DoLS) are unfit for purpose and should be replaced by the proposed new system of ‘protective care’, instead of ‘restrictive care’. We would like Government to proceed with implementation and for a definition of deprivation of liberty for care and treatment to be debated in Parliament and written into statute.

Introduction

1. The British Geriatrics Society (BGS) is the professional body of specialists in the healthcare of older people in the United Kingdom. Our membership is drawn from doctors practising geriatric medicine including consultants, doctors in training and general practitioners, nurses, allied health professionals, researchers and scientists with a particular interest in the care of older people and the promotion of better health in old age. BGS has 3,500 members who work across England, Scotland, Wales and Northern Ireland.

2. In 2015 BGS responded to the Law Commission’s consultation on reform. We fully agree that the current deprivation of liberty safeguards (DOLS) are unfit for purpose and should be replaced by a new system of protective care instead of restrictive care. We were pleased to see this acknowledged in the Law Commission’s final report and Government’s interim response to it.

Our full and detailed response to the 2015 consultation is available here.
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3. BGS welcomes this opportunity present a written submission to the Committee’s Inquiry into the reform of deprivation of liberty safeguards. Our submission follows the order of the questions posed by the Inquiry.

Do the Law Commission’s proposals for Liberty Protection Safeguards strike the correct balance?

4. Broadly speaking we believe the balance proposed is helpful. We welcomed the Law

Commission’s final report, whilst also having some concerns about aspects of a small number of proposals. Overall we believe that the proposals would be of direct benefit to patients and their families, to health professionals and also to local authorities in their authorising role. Our view is that it would make implementation of the legal framework less bureaucratic and less onerous without eroding legal protections.

5. We especially welcome:

  • the proposal to allow an authorisation to move with the person between care settings. Our view is that this is a helpful and practical solution, particularly in situations where someone’s health and care needs are fluctuating and rapidly changing, which is the case for many older people.
  • the increased focus on whether a deprivation of liberty is necessary and proportionate. The way that the principle of proportionality is set out (paragraph 57 of LC summary report) supports a degree of risk-taking which is a key part of person-centred care. Having said that, we would be extremely concerned if a local authority was using its awareness of the ‘necessary and proportionate’ principle as an indirect means of reducing its expenditure by providing a ‘lower but still acceptable level of care’ that enables the person to remain at home.
  • the removal of the duty to hold an inquest when a person dies whilst under a DoLS authorisation
  • the streamlining of processes which would lighten the bureaucratic burden, for example the provision in the draft Bill for an authorisation to cease before its expiry date as soon as it is no longer justified, without the requirement of a formal review process.

6. We have some concerns about:

  • extending protection of liberty decisions to cover settings beyond hospitals and care homes is a potential concern to us. In extending protective care to domestic settings we have questions about the practicability of professionals trying to adhere to a legislative framework. Our view is that further consideration is needed of the potential for creating conflict in an environment which needs collaboration between professionals, families and carers in order to provide the best care for an older person.
  • the capacity of local authorities to implement the recommendations. We are concerned about whether they have the capacity to deliver within the required timescales, and about the impact on patients and families when there are delays.

Whether the Government should proceed to implement the proposals for Liberty Protection Safeguards as a matter of urgency

7. Notwithstanding our concerns, our view is that Government should proceed to implementation of the Law Commission’s proposals as soon as possible. The current position under existing Deprivation of Liberty Safeguards is failing to achieve its intended purpose, is causing unnecessary distress to patients and their families, as well as being overly burdensome to administer. Already almost a year has elapsed since the Law Commission’s report and the draft Bill were published, and the current framework has continued to apply, with all its associated problems.

Whether a definition of deprivation of liberty for care and treatment should be debated in Parliament and set out in statute

8. We believe it is essential that this is debated in Parliament and set out in statute. The proposals introduce new protections for people when they are vulnerable and in need of care at the right time and in the right place. The impact of decisions about protecting liberty is of such significance for patients and their families that we believe any change must be properly debated and enshrined in statute. We also think that the change of terminology, from ‘deprivation’ to ‘protection’ is an important shift in focus which should be written into the legislation.

9. Given that a Bill has been drafted already, we hope that debating the definition and setting it out in statute would not cause undue delay to implementation of the proposals.

Concluding comments

BGS is pleased that the Committee is conducting this Inquiry. We hope that it will prove helpful in progressing the reform of the existing legal framework, and result in a more effective, and less bureaucratic system of safeguards for the protection of liberty. Such safeguards are critically important to the older people and their families who our members are working with on a daily basis.