[The Joint Committee on Human Rights wrote on 28 May 2023 to the Minister of State for Social Care to express its view that the “delay [to implementation] is deeply concerning, given the serious problems with the DoLS system that we reported on last year,” and to ask three questions. The Minister, Helen Whately MP, has responded by letter dated 14 May 2023 (published by the JCHR today, 23 May). The letter is available on the JCHR website here, but as it requires a bit of navigation to get to it, I reproduce the material parts.]
The decision to delay implementation of the Liberty Protection Safeguards (LPS) was taken after careful consideration of any implications it may have. I know that many people and organisations did an incredible amount of work in preparing for the introduction of these safeguards and the decision to delay their implementation beyond the lifetime of this Parliament was not taken lightly.
As you are aware, the Deprivation of Liberty safeguards (DoLS) set out in the Mental Capacity Act 2005 (MCA), is the system that provides for the lawful deprivation of liberty, of adults who lack the relevant capacity in hospitals and care homes, in accordance with article 5 of the European Convention on Human Rights. It is important that everyone concerned upholds this system. I do, however, recognise the challenges facing this system following the Supreme Court judgment in 2014 in the ‘Cheshire West’ case which increased the number of people considered as deprived of their liberty. The introduction of LPS was intended to address these challenges and although the Government has decided that now is not the right time to introduce this reform, I understand these challenges continue to pose practical problems for those affected by and applying the DoLS including those highlighted in your letter. I have responded to each of your points in turn.
- Does the Government still believe that the system of DoLS is in need of reform? If so, given the delay in the implementation of the LPS, are any reforms of the system currently planned in the interim?
The Government still accepts the need for change and we are pleased that we have made progress towards introducing the LPS. There was clear support for implementing the LPS to replace DoLS at consultation, which will be a matter for a future government to consider.
The decision to delay the implementation of the LPS will enable us to focus on our priority of ensuring that everyone can access the right care, in the right place, at the right time. To achieve this goal, we are providing an historic funding uplift to the sector and taking forward the reforms set out in the Next Steps to Put People at the Heart of Care plan, which include investment in the workforce, technology and support for unpaid carers. Although these wider reforms will not alter the DoLS system, they will improve the lives of people who draw on, work in or provide care and support.
With respect to plans to reform DoLS in the interim, we recognise the importance of updates to the Mental Capacity Act Code of Practice (MCA Code) being taken forward irrespective of LPS to ensure all those practicing in this space have accurate and up-to-date guidance. Since the MCA came into force in 2007, the MCA Code has played an important role in shaping the practical application of the MCA. The Department of Health and Social Care and the Ministry of Justice (MoJ) intend to work together to consider the feedback and publish a response to the 2022 consultation on changes to the MCA Code, with the aim of publishing a revised MCA Code that supports understanding and the application of the MCA which is essential to the application of DoLS. Further details on the timing of this work will be shared with the sector in due course.
Finally, I recently met with the Chief Executive of Social Work England and our officials continue to work together on launching a consultation on refreshed standards for Best Interest Assessor Training to ensure the ongoing quality of all those carrying out this important role under DoLS.
- What steps are being taken to address the delays to the processing and completion of DoLS applications, with the aim of ensuring that no one is unlawfully deprived of their liberty in a care setting?
The Government has made it clear that all individuals and bodies with legal duties under the DoLS must continue to apply these important safeguards to ensure the rights of people without the relevant mental capacity are protected.
Local authorities have a duty to make sure that they are processing all cases under DoLS and receive specific funding to process cases in the NHS through the Local Government Community Voices Grant. Annual data on the DoLS clearly shows wide variation in how local authorities are processing and completing their DoLS applications. Many local authorities already use a prioritisation tool to manage DoLS cases, such as that developed by ADASS following the Cheshire West ruling in 2014.
The Government has made available up to £7.5 billion of additional funding over two years to support adult social care and discharge – with up to £2.8 billion available in 2023/24 and up to £4.7 billion in 2024/25. Local authorities have flexibility about how to use this funding to meet local needs.
- Will the availability of non-means-tested legal aid be extended to include those who may be subject to deprivation of liberty in care settings without an authorisation in place?
From 15 March 2022 to 7 June 2022, the Government consulted on detailed policy proposals published under the Legal Aid Means Test Review. The MoJ published the Government Response to the consultation exercise on 25 May 2023 which set out the detailed policy decisions underpinning the new means-testing arrangements.
As part of the recent Legal Aid Means Test Review covering England and Wales, the Government considered whether certain specified civil legal aid proceedings should no longer be subject to means testing arrangements. These proposals did not extend to the removal of legal aid means testing for individuals subject to deprivation of liberty in care settings where no authorisation was in place or in cases where the Court of Protection needs to make a deprivation of liberty order, and, therefore, this position remains unchanged. However, if the application to the Court of Protection is made on behalf of an under 18-year-old, the applicant will benefit from the decision to introduce non-means tested civil legal aid representation for all under 18s.
- What steps are being taken to ensure that those involved in making DoLS decisions receive adequate human rights training, and fully understand the operation of DoLS?
It is vital that those involved in DoLS decisions receive the right training. Training and learning on DoLS, which is free to access, is available through Health Education England’s e-learning for health platform as well as the Social Care Institute for Excellence’s website.
It is also essential that all those involved in DoLS decisions have sufficient understanding of the MCA which underpins the safeguards. In addition to updating the MCA Code, the Government continues to support the National Mental Capacity Forum whose purpose is to raise awareness and understanding of the MCA across the health and social care sectors. The Department has sponsored this Forum jointly with the MoJ since 2015, bringing together stakeholders from a range of sectors where the MCA applies. Furthermore, MoJ continue to deliver wider MCA-awareness raising work on aspects of the MCA that do not directly relate to DoLS but are important for the proper application of the MCA which underpins the DoLS. This includes the publication of an MCA toolkit this month which provides guidance on the MCA and the legal steps for parents and carer to access funds on a young person’s behalf.
I appreciate all the ongoing efforts of the sector to ensure the rights of those deprived of their liberty are upheld and I welcome the Committee’s ongoing interest in this important issue.