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Reform of deprivation of liberty safeguards (DoLS)

The Health Minister has endorsed the Law Commission’s recommendations to replace the current Deprivation of Liberty Safeguards (DoLS) with Liberty Protection Safeguards (LPS). The Mental Capacity Act 2005 currently applies to all persons over 16 who are detained in a hospital or care home for the purpose of care or treatment, in circumstances which amount to a deprivation of liberty.

The Deprivation of Liberty Safeguards (DoLS) scheme which allows Local Authorities to authorise such deprivations only apply to persons over 18, which is a nonsense. It means that it is illegal to deprive a young person of their liberty without authorisation, and impossible to get authorisation without applying to the Court of Protection. The result has been that many young people have been deprived illegally (so far as the letter of the law is concerned) putting providers at real risk.

Since 2012 I have been communicating in various forums with representatives of the Department of Health, Department of Education, and regulators (Ofsted and CQC), in an attempt to get them to acknowledge the problems faced by those looking after children and young people. In 2014 the House of Lords found that the current DoLS regime was not ‘fit for purpose,’ and in 2017 the Law Commission was invited to make recommendations to improve matters. Unfortunately, they failed to address the issue of whether deprivations of liberty can be authorised for children under the age of 16, and if so how?

In my view that issue still needs to be addressed. I have also been keen to get some official recognition that Deprivation of Liberty does not just apply to the Mental Health Act 2005, which tends to focus on long term arrangements in which adults are continually restricted. For many children and young people there are times when they are settled and able to regulate their own emotions and behaviour. In such circumstances they do not require measures that could constitute Deprivation of Liberty. But at times, when they are unsettled, they are not able to regulate their emotions and behaviour.

In those circumstances, in which they could be considered to be temporarily ‘of unsound mind,’ they may well require restraint and restriction for their own safety and that of others. The authors of policy and guidance often fail to address the needs of these children and young people precisely because they raise complex issues. Balancing Risk, Restraint, and Restriction is not easy. That is precisely why we need to be honest about it and face up to the issues. For example, dropping ‘Risk’ from the title of guidance aimed at reducing risk, restraint and restriction, makes it easier for regulators to ignore risk and focus only on reducing restraint and restriction – both laudable aims so long as the cost is not increased risk of harm to children.

The Government’s final response to recommendations made by the Law Commission in March 2017 was published on 14 March 2018. It is a move in the right direction, although in my view it does not go far enough in addressing this vulnerable client group. For the avoidance of doubt, these are some of the children who end up being sexually abused by gangs of older criminals, or as child slaves working for drug gangs, or marching out of children’s homes and killing themselves. These are not imaginary scenarios – they are real. Children have already been placed at risk of harm, and some have come to harm because staff were told they were not allowed to restrict the liberty of children under any circumstances. Some children were excluded from provision as a result and exclusion itself put them at risk. This is reprehensible.

It is understandable that providers, policy makers, and regulators have been confused, because they have been given confused and contradictory messages over the past decade. It is the vulnerable children, who are sometimes temporarily ‘of unsound mind,’ who are exactly those most at risk of abuse and exploitation.

  • The government has accepted the Law Commission’s recommendations to replace DoLS with Liberty Protection Safeguards (LPS) to include ‘persons of unsound mind.’ That is helpful as that wording comes from Article 5(1) of the ECHR.
  • The proposal to widen the scope of the safeguards, to include children and young people between 16 and 18, so that it becomes possible for authorisation to be obtained without going through the Courts, is sensible too.
  • The proposal to allow different ‘responsible bodies’, to authorise LPS, for example a hospital trust, is sensible. A similar system is already working in Wales. The requirement to record all the authorised arrangements in a detailed care plan also makes sense, as is the requirement for an Independent Mental Capacity Advocate for the person concerned.
  • It is regrettable that no thought has been given to the under 16s to enable continuity as they pass into adult services. In the case of children and young people under the age of 16, especially those with Social Emotional Mental Health (SEMH) difficulties, we do not need yet another layer of legal bureaucracy. The vast majority of young people to whom LPS will apply would already have Education Health and Care Plans (EHCPs), and/or Looked After Children (LACs) plans.
  • It would make sense to continue with those and use them as a framework for authorisation of LPS by the ‘responsible body’. The processes already exist and with slight alterations could easily enable local authorities to fulfil their legal responsibilities. Arrangements for annual review are already in place (6 monthly in the case of LAC reviews). It seems stupid to me to have two similar processes running in parallel. This would also allow us to address the issue of the under 16s, which the Law Commission ignored.
  • The fact that the current EHCP process is imperfect, which is true, and that Local Authorities are not currently carrying out their responsibilities in respect of it is not an objection to this proposal. Local authorities cannot cope with the current DoLS either. The EHCP process needs to be fit for purpose, if part of that purpose becomes authorising LPS. Regulators need to ensure that local authorities, in their role as responsible bodies’, do their job properly to ensure protection through childhood into adulthood.
28 Mar 2018
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