The BGS on Deprivation of Liberty

The British Geriatrics Society welcomes the opportunity to respond to the Law Commission’s Consultation Paper on Mental Capacity and Deprivation of Liberty. Our submission first provides a summary of responses to key proposals and issues raised by the Law Commission’s Consultation Paper and then provides detailed responses to specific questions. 

• We agree that the current deprivation of liberty safeguards (DoLS) are unfit for purpose and should be replaced by a new system of protective care as opposed to restrictive care.
• We believe that the scope of the new system should be kept narrow to distinguish from the current DoLS focus on restriction of liberty at the expense of Article 8 rights to privacy and family life under the European Convention on Human Rights(ECHR).  We firmly believe that, following the 2014 Supreme Court judgement, the current DoLS have potential to undermine Article 8 and that any new system must seek to protect Article 8 rights.
• We have identified many instances when ‘continuous supervision and control’ is justified and necessary on clinical grounds by the patient’s medical condition, for example to care for patients in the intensive care unit to keep them alive or to meet the needs of a distressed patient receiving end of life care in hospital, a care home or in their own home. The hypothetical test of restriction to movement in the event that such a patient may attempt to leave their current care environment is, we believe, arbitrary and irrelevant.
• We believe that all such vulnerable adults have a right (articulated within Article 8) not to be subject to burdensome and wholly unnecessary state interference that might occur as a result of the current DoLS focus purely on Article 5 rights to personal liberty under the ECHR and the concept of restriction.
• We believe that the designation of restrictive care must only apply where restriction of movement and choice for a patient without capacity is as a direct, intentional consequence of the care plan, which arises out of a best interests decision. Even then the focus must be on protection of the patient’s identified best interests and on upholding both their Article 5 and 8 rights.
• Where a patient’s movement and choice is restricted primarily by their condition (for example where they are in receipt of care which is life sustaining, for end of life or care to maintain safety and well being within existing best practice standards), we believe that the patient’s best interests will be met by a system of protective care designed to uphold where practicable their Article 5 and 8 rights.
• Such a system of protective care must not be burdensome or bureaucratic and must not detract from ensuring that the patient’s best interests are maintained at the centre of care planning and delivery.
• We agree that protective care should be accompanied by a clear, practicable and easily accessible code of practice.

We broadly agree with the proposed principles of protective care but have concerns about their practicability as a system of care as follows:

• We believe the proposed system when implemented has great potential to be more bureaucratically burdensome in practise than the current DoLS.  
• We believe the proposed system will have significant public service resource impacts, which we believe to be unaffordable within the existing health and social care resource envelope.  An inadequately resourced system of protective care will in turn fail to achieve its desired objectives of protecting vulnerable adults with significant opportunity costs to the health and social care system.
• There are currently difficulties in assessing capacity, which is not simply present, or absent but which fluctuates; effective assessment for protective care hinges on the skills of the assessor.  Staff currently struggle with capacity assessment and there will be major challenges regarding adequate staff training and implementation of any new framework.
• We are concerned that the proposals appear to distinguish mental health from physical health disorders. For persons in hospital and care homes there is a high prevalence of delirium, which may require protective care and for which there may be significant resource implications if the outlined proposals are to be delivered. 
• We wish to highlight a particular concern in relation to delirium in hospital following planned care, which is both common and can lead to fluctuating mental capacity.  A new system of protective care must take account of the difficulties created by delirium which may supervene following consensual admission for treatment and may subsequently resolve but which transiently leads to incapacitous refusals of care. Where the original purpose of intended care is being met, and loss of capacity is transient, we believe the Mental Capacity Act(MCA) already provides adequate safeguards to meet best interests and there should be no need for a formalised additional safeguarding procedure.
• The MCA already requires people to act in the best interests of patients. We have some concern that the ethos and spirit of the MCA could be subverted by new bureaucratic systems that are difficult to implement. 
• We believe that a new legislative framework must take account of and support an evolving care system, and that this requires legislators to have greater understanding of supported living as it is delivered now and likely to be delivered in the future in order to ensure that new frameworks remain fit for purpose.
• We believe that safeguarding and decision-making about care planning should be separated to minimise risk of ‘process’ consuming resources that should be directed towards basic care. 
• We believe that the scope of protective care as proposed should be reduced. We question whether people in hospices at the end of life, and in intensive care in hospitals during critical illness, are truly being deprived of their human rights in the way described in Articles 5 and 8.
• We believe that care homes should be regarded as palliative care settings for the purpose of protective care. BGS wishes to highlight that the short median life expectancy of older residents in care homes indicates that care homes provide final year of life care for many. We therefore question the necessity of including of all care homes within the scope of a protective care framework.
• BGS wish to highlight the potential for distress to bereaved family and carers currently caused by the requirement for Coronial Inquest following death while DoLS are in place. We believe this is largely of no purpose and subjects families and carers to unwelcome and unnecessary state interference in their bereavement.  We believe a new system of protective care must not of itself subject bereaved families and their carers to unnecessary and otherwise unjustified Coronial Inquiry.
• We have concerns about a new framework leading to loss of unrealised potential of the MCA in supporting the approaches of proportionality, pragmatism, the role of professional judgement and discretion. 
• We have concerns about the extension of protective care to domestic settings. We question the practicability for professionals in trying to adhere to a legislative framework in this setting. Specifically we are concerned about the potential for creating conflict in an environment, which requires collaboration between professionals, families and carers. 
• Given the current economic climate and intense pressure public service funding, we question whether local authorities currently or in the future would have capacity to discharge all of the duties, which will be imposed by the proposed legislative framework. We believe the current DoLS framework is not fit for purpose but, following the 2014 Supreme Court judgement, the capacity and capability of local authorities to administer such a system have been far exceeded. We are not confident that the proposed framework is sufficiently succinct to avoid this situation recurring, leading once again to an over bureaucratised and unfit framework dominated by process and which does little to uphold article 5 and 8 rights.
• We believe that elements of the new framework appear to conflate decisions about care resource allocation and deprivation of liberty and that these two things must be clearly separated in any new framework.
• We are concerned that any new protective framework with potential impact on resource allocation must be tested fully to ensure equal applicability to those who are able to fund their own care and those who are dependent on state funding for care.
• Lasting Powers of Attorney (LPA) are not widely used for welfare decisions and we believe would add little in practice to the delivery of protective care which is not already adequately addressed in the MCA best interests process.
• We give qualified support for the restrictive care and treatment proposals including the development of Approved Mental Capacity Professionals. However such a role should be limited in its practical scope. It would not, for example, be the role of Assessors to oversee every action in a hospital ward.
• For persons in hospitals we believe that the best interests process which surrounds protective care planning should be centred on multidisciplinary teams led by senior decision makers. 
• We believe that the MCA is a useful and effective statutory framework in clinical settings and that protective care must uphold the spirit and ethos of the MCA if it is to be utilised effectively in clinical settings.
• We also urge careful consideration of the economic impact and anticipated additional drain on challenged public services resources of a protective care framework, which is overly wide in scope and overly bureaucratic in its delivery.