The Very Protective Safeguards

Well, I’m back. I anticipated my blogging break to be akin to a couple of months on the French Riviera but it’s turned out to be more akin to an longish weekend in Camber Sands. And the reason why I’ve been hoisted by my own petard? I blame the Law Commission, who yesterday published their new report on their proposals to replace the Deprivation of Liberty Safeguards.

The full report is here:

This may sound rather overblown and a trifle pretentious but reading the report yesterday brought home again how much Steven and I are embedded in the history of the DoLS legislation. Seven years ago, I didn’t know they existed as it was around this time that Steven was served the first urgent seven day authorisation. But seven years on, I’m now a fully paid up,  card carrying member of the DoLS Geek club. Yesterday my Google alert function went into meltdown!

It’s very hard to read the new proposals objectively when you’ve been so badly burned by the previous scheme. So, pardon me for leaving objectivity at the door but this is the Neary Acid Test, first thoughts on the new scheme. My acid test is slightly more cynical than Lady Hale’s. My third eye is always open to searching for the openings that enable the state to manipulate or ignore the new legislation. And from my totally subjective position, I can’t help but repeatedly ask the question as I read, would these new rules have made any difference to Steven back in 2010. That is the lens this post is passing through.

Firstly, there is the name change. The Law Commission are only suggesting the name as their focus is quite rightly on the content. However, at the moment, the new scheme is called the Liberty Protection Safeguards. I’m glad they’ve ditched the “deprivation” as that word seemed to give a green light to some to detain people without thought for a more constructive care plan. But aren’t “Protections” and “Safeguards” the same meaning. It feels rather like wearing two condoms. The report makes repeated reference to the new rules being more Article 8 and CRPD compliant – couldn’t that have been emphasized in the name? But I don’t want to dwell on the name as it may possibly change. I will focus on just a few of the changes:

The new LPS are meant to kick in BEFORE the person moves to the place where the detention will take place. At present, the person can be detained for ages before the process starts with an urgent 7 day authorisation. The intent behind this change is to force good care planning before the need to move someone. It also forces a human rights based agenda to drive the process. Like we pressed for with the LBBill, the State has to make a very strong case from the outset that detention is the most appropriate course of action. This sounds like a very positive move. But I worry about all those cases we heard about during 7 Days of Action, that echoed Steven’s pathway to the ATU – their initial reason for leaving their home was for an agreed period of respite, which quickly turned into something far more sinister. Or the person went to a “holding” place as the care provider pulled out of their package. Would these people fall under the new Safeguards from the beginning? And if they don’t, how long before someone notices and acts on the original intention changing.

In a move to cut costs, the role of the Best Interests Assessor is drastically changing. There will be a new role called the Approved Mental Capacity Professional. At the moment, a BIA is an essential part of the assessment process and can recommend that the DoL isn’t authorised or suggest conditions or recommendations to be added to the DoL. Under the new scheme an AMCP will only be appointed in cases of disagreement about the placement or where the LPS is needed to prevent harm to others. In Steven’s case, Justice Jackson questioned the independence of the Best Interests Assessors but the new scheme may compromise that independence even more. The person making the case for the LPS will already be involved in the person’s care planning. Looking at this through our 2010 lens, I know that Whistler’s Mother would have signed the LPS like a shot and would have breathed a huge sigh of relief at the lack of external scrutiny.

At the point of the LPS being triggered, the person will be appointed a “representative”. More than likely, this will be a family member or carer. So, the detained person will not be totally on their own but most family members will be ignorant of the LPS scheme like I was in 2010 and will need signposting to the rights of the detained person. It puts an awfully huge responsibility on an untrained (in the law) family member to be the main external scrutineer of such a major decision.

Another change that makes me feel very wibbly wobbly is the new role of the “Independent Reviewer”. This will be the person who “signs off” the LPS after checking that it is legally sound and that the detention is “necessary and proportionate”. This could be anyone from the “Responsible Body” who is not directly involved in the care of the detained person. It could be a colleague sitting across the office from the person who has assessed and written the authorisation. This seems to me to be a huge challenge in maintaining independence. Don’t forget, we have got to the final stage of the process – the authorisation of the LPS and only one external pair of eyes may have been involved so far – the representative. It is true that the requirement for an IMCA still stands in the new legislation but we have plenty of evidence at how tricky it is to get an IMCA when the state would rather you didn’t have one.

There seems to me to be a rather big contradiction running throughout the narrative for the new scheme. The report talks a lot about the importance of the person’s rights. It also nods to the CRPD with repeated mention of the person’s wishes and feelings taking priority. This is clearly a very positive move. But then, I wonder if those progressive ideas are diluted by the removal of the “best interests” driver and instead having the replacement, “the necessary and proportionate” rule. I’ve seen a few commentators state that they see little difference between the two but I’m not so sure. Although, there has been many debates over the years as to what “best interests” mean, it still feels a more encompassing, person centred idea than just “necessary and proportionate”. When push comes to shove, it could be argued that something is necessary and proportionate, without being in the person’s best interests at all.

The Law Commission have sat on the fence regarding access to court and are leaving it to the government to decide. They flag up a tribunal, similar to a mental health tribunal, as an alternative to a costly Court of Protection hearing. Throughout the 7 Days of Action campaign, I was shocked to hear the many stories of dudes detained for years and the tribunal system having no effect on their detention whatsoever. I know that if I was faced with the choice between a tribunal and the scrutiny of Justice Peter Jackson, which one I would choose.

The scope of the new scheme is being widened beyond care homes and hospitals to include, amongst others, supported living and the person’s own home. I can’t get my head around that last one at all. As I watch Steven going about his daily business, it never occurs to me whether he is being deprived of his liberty. He does not live in a cage, gilded or otherwise. I cannot begin to compare his life in his own home and his life in the ATU, with its daily prone restraint, over medication & stopping all his external activities for three months. Sure, he will always need 1:1 support in the home, to support him with the stuff he cannot do and to keep him safe from himself when he gets extremely anxious. But that cannot fall under the scope of this legislation surely? Mind, one man’s deprivation of liberty is another man’s sensible care planning.

I do like the idea of the law now covering supported living and wonder if it’s now the time for honest and brave reasons from the Local Authorities for authorising a LPS. Round my way, the people in supported living are in their pyjamas and in their rooms from 6pm to 7am. Will we see an authorisation that states the deprivation is necessary and proportionate because, “we are not willing to fund any additional hours”? I wrote about the recent case of Davey vs Oxfordshire CC who reduced Mr Davey’s support by 40% claiming that time alone would encourage his independence. Will the new LPS put a stop to those shameful tactics or at least force the LA to call a spade, a spade.

If I was a trainer, I would sit the trainees down with a copy of the 2011 Neary judgment and ask them to analyse how the LPS scheme would prevent such things happening again. Would the “elephant in the room” of Steven’s real deprivation of liberty being kept away from his home have been revealed sooner? Would the LPS assessments have been more diligent, more fair and scrutinised better than 2010? Would Steven have received the necessary advocacy? Would he have got to court, and therefore, home sooner?

I have to say, I’m not confident of the answer to any of those questions being “Yes”.

But I’m hopeful.




28 thoughts on “The Very Protective Safeguards”

  1. Yes, I like the words Liberty Protection Safeguards better than DoLS.
    Also better protection of Article 8.

    Thanks for explaining this. Language has to sound as though it’s positive, and this is positive.

  2. thank goodness you are back – I cant manage without your blogs. The Law Commission’s report is all fine and good, but divorced from reality. Martin has been deprived of his liberty under a standard authorisation for three years now, 29th April due for renewal. It has never been appealed, although Martin was told this year that the RPR was taking it back to the Court of Protection, and a solicitor had been employed. Since then silence. Yesterday the RPR failed to turn up for her appointment with Martin. She is not answerable to anyone. Martin has capacity but the authorisation states “it is unlikely that Martin will regain capacity”. I am not allowed to be his RPR – no legal reason given.

  3. I must also add; under the DOLS Martin is only allowed home for 3-4 hours once every 6 weeks, as the home do not have enough staff or the transport for him to visit me more frequently. I have not seen him since 24th December, and canget no confirmation of the date of 8 April until they write the roster. This is the reality of the total illegality of DOLS for Martin (and all the others)

    1. Shirley, I’m not sure you can say “all the others”. I’ve met several people for whom having a DoLS in place led to them having a better life. Steven’s story is an example of the best and worst of DoLS. Yes, the DoLS were unlawful but having a DoLS meant we were able to get to court & get Steven home.

    2. I heard a small but powerful story last week. A care home were refusing to let an elderly lady visit her family, citing risk of falling as the reason. They had to do a DoLS & the best interests assessor made it a condition that the lady visited her daughter every week for Sunday lunch. That one intervention helped her quality of life enormously.

  4. Interesting finding today, from supreme Court. People can now leave their money to any one they like -and can exclude anyone they do not name as beneficiary. Does that mean councils cannot any longer challenge wills I wonder ? Where LD etc people are not named as beneficiaries in parents will, and who require care and support from LA.

  5. ….and if so, could it see a drop in Mencap’s income from it’s advice on wills and their, Mencap, discretionary Trust ?

  6. On the proposed name Liberty Protection Safeguards – How can removal from home friends and family against a deemed ‘incapables’ wishes to 24/7, every move controlled ‘care’, be safeguarding his liberty ?

    But then how can an act that’s main purpose is to remove care be called a Care Act ?

    And how can a Mental Capacity Act whose purpose is, and has served to remove the capacity now of over a million, be deemed to enable choice and empower ?

    A word means what Humpty Dumpty wants it to mean, no more or less.

    Now we know why Cheshire was allowed to get to the Supreme Court.

    So once a person is assessed as ‘incapable’ they remain in care for their ‘best interests’ for life, despite the MCA saying the assessment be ‘time’ and decision specific.

    And it is unlikely a contested capacity case will reach the Supreme court.

    It shows the Law Commission etc are behind the executive, and their policy is removal to residential for life for profit, making the LD/autistic a commodity package for life..

    1. That’s a sweeping generalisation Finola. I don’t read any of that in the report. There’s lots of concerning things in the report but I don’t feel that the Law Commission are puppets. They invited input from across the board & the report shows that the few families that responded were listened to.

      1. Not my family Mark. Martin himself wrote to the Commission, as did I. Nobody listened to us

    2. Finola I tried to appeal Mr Justice Charles’ decision that my application to be Martin’s deputy for health and welfare (at Martin’s request) was not valid. The Supreme Court’s decision: Refused as totally without merit.

      1. Yours and Martin’s predicament illustrates that the Mental Capacity Act is doing the exact opposite to what Parliament passed it to do.

        It is removing power and decisions from the deemed by state ‘incapable’ ie Martin, rather than empowering them and ensuring others do not take decisions on their behalf that they do not want.

        Martin is not ‘incapable’, and in any event he has to be assessed as incapable of making a specific decision that is needed to be made in his best interests at a particular time, that is the law in the MCA that was passed by Parliament.

        Instead Martin has had every decision made for him for the last 10 years without assessment and regardless of the MCA.

        And so have hundreds of thousands of others and increasingly more souls are added each year.

      2. A contradiction there. The Mental Capacity Act isn’t a human being so it isn’t capable of doing anything. It is the people applying or not applying the law that need to be challenged all the way.

    1. Mark and did Law Commission invite people with LDs – I mean not just invite in a very tokenistic way by asking people to respond via a email address. I mean the LC actually went out and visited groups of people with LDs –

      1. Please see Paragraph 1.9 of the consultation paper (the link is in my post above). The commission quotes submissions from, amongst others, disability groups and carers organisations. They also visited people in care homes and hospitals.

  7. good to hear that Mark – what have they done as I may want to write an article for community living – good to draw upon what they have said. People 1st had its AGM 2 weeks ago – it was agreed that we should be taking on the work around the increasing institutionalisation of people with LDs – anyone that might light to help us please contact me via this website or contact Andrew Lee at People 1st. Many of you have had experiences that People 1st would be very interested in hearing about. We are looking to run a campaign. People 1st was left a legacy from a person with LDs estate – set up I think by the family. It was such a lovely gesture and People 1st really felt our efforts were being noticed and appreciated by our brothers and sisters no longer with us and their families who saw we were doing good work to promote the voice of people with LDs.

    1. Simone, why don’t you find out by contacting the Law Commission yourself, about what work they’ve done with people with LDs?
      As an organisation, they should recognise that you’re a powerful voice – as you are people with LDs.
      As for stories from us, personally I think there should be a database of stories, that with the parent or person’s permission, can be read. It’s very hard to talk about them with different people at different times. A lot of trauma. Too much research, too little action is what professionals usually do, but it’s tough talking about our own stories. We must think of a way of making our stories accessible.

  8. Radio 4 You and Yours on Wednesday had a feature on DOLS for anyone who is interested and is following this thread

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