MENTAL CAPACITY AND DEPRIVATION OF LIBERTY –
NEW INDEPENDENT BODY
ESSEX COUNTY COUNCIL – ADULT SOCIAL CARE
This year there has been two pieces of significant news regarding both the Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards (DoLS) poorly implemented.
To remedy to the situation a new Independent Body will be created which will take full responsibility for implementation and improvements with various accountabilities (training, annual reviews etc.) and it will report directly to ministers. The report calls for more training and publicity of the Act to a wider audience and also called for a review of DoLS, implying that the legislation will need to be rewritten to make it more meaningful and appropriate.
This was then followed by a ruling from the Supreme Court in March 2014 in relation to a major DoLS appeal, and which has potentially changed the meaning and definition of DoLS. Initial interpretation of the ruling is that every incapacitated person who is under continuous care and control and who is not free to leave, is deprived of liberty and, therefore, requires a DoLS – this is known as the “Acid Test”.
There are now discussions seeking clarity over the meaning of ‘continuous’, ‘control’ and ‘free to leave’, and the difference between ‘control’ verses ‘care’. There are also implications for people living in their own homes and supported living as well as those in care homes, nursing homes and hospitals. As a consequence there has been a dramatic increase in the number of DoLS applications being made to every local authority in the country.
Only a Best Interest Assessor (BIA) can undertake a DoLS assessment and ECC is working closely with providers of care to help them understand the “Acid Test” and look at reviewing the care arrangements to see if less restrictive arrangements can be considered before a DoLS is requested.
If a DoLS is required for someone living in their own home or supported living then that can only be agreed by the Court of Protection and not the local authority.
The DoLS process is a complex and time consuming one which has been recognised as such by the Government and there are expectations that later in the year (2014) there will be some changes announced to the process.