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Government introduces legislation to streamline Deprivation of Liberty Safeguards

Posted: 19/07/2018

New proposals are set to reform the Deprivation of Liberty Safeguards which have been criticised for being too complex and too bureaucratic. In addition to addressing the flaws of the current system, the measures could save local councils £200 million a year.

The Law Commission’s 2017 review of the Deprivation of Liberty Safeguards found that they were ‘failing those they were set up to protect’. Its proposed reforms, the Liberty Protection Safeguards, have been broadly adopted by The Mental Capacity (Amendment) Bill which was introduced to the House of Lords last week. It is expected that the new reforms will help improve the efficiency of the system by reducing the need for separate applications for each location in which the individual’s care is administered. Caroline Dinenage, the Minister for Care, says the reforms are particularly important in ‘[reducing] the burden on councils so they can focus their resources where they are needed on the frontline’.

The bill takes a broader, streamlined approach to authorising the care administered to a person under a deprivation of liberty. For instance, the individual’s overall care plan must be considered when making judgments regarding any restriction of liberty. New authorisation will no longer be needed when the individual moves between different providers of care, such as hospitals, ambulances and care homes. The authority to make decisions about the individual will be transferred to the NHS while they are in NHS care.

These reforms form part of a broader intention to reduce the burden placed on the local authority, as well as on the individual’s carers and families. Other objectives include simplifying the procedure and increasing the involvement of families in order to ‘better protect the most vulnerable in our society’.

However, while the reforms are vitally needed, they arguably do not go far enough. Alex Ruck Keene, a specialist in the Court of Protection, has criticised the bill’s departure from a number of the Law Commission’s recommendations. Most notably, the new bill applies solely to those aged 18 and above, instead of the Commission’s recommendation to include those over 16. It also fails to include a statutory definition of ‘Deprivation of Liberty’; the Commission’s proposed reform on sections 4 and 5; and the ‘proposed tort of unlawful Deprivation of Liberty’.

Overall the new safeguards should improve the protection granted to vulnerable individuals. Although the improvements in efficiency, a wider consideration of their interests and the greater involvement of families have been broadly welcomed, the reforms still leave plenty to tackle.

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