There is little dispute that the law on deprivation of liberty is in urgent need of reform, and theÂ Law Commission reaffirms in its interim statement, published last week, that â€œlegislative change is the only satisfactory solutionâ€. The question is the scope, shape and pace of that change and whether the government will have the appetite and the funds to implement it.
TheÂ original Law Commission proposalsÂ â€“ put out for consultation in July 2015 â€“ could not be faulted for lack of ambition. They envisaged, broadly:-
Overall, the effect would be comprehensive, principled, and with greater emphasis on prevention of a deprivation of liberty arising; but also hugely expensive (the impact assessment put the costs of implementation at Â£1.8bn over 10 years) and, arguably, even more complex than the DoLS scheme it would replace. The governmentâ€™s frosty initial response to the consultation saw it more in terms of the latter.
At the governmentâ€™s request, the Law Commission has now published an â€œinterim statementâ€ setting out the proposed direction of travel now through to the final report and draft legislation, due to be published by the end of 2016.
The Law Commission reaffirms the â€œcompelling caseâ€ for replacing DoLS and the scale of workloads and pressure on resources mean that â€œany notion that the existing system can be patched up to cope, even in the short term, in our view is not sustainableâ€.
However, those same financial and resource pressures in the current economic climate mean that many respondents saw the grand scale of the initial proposals as unrealistic, and simply too costly to implement at the moment.Â While the Law Commission pushes back a little on this (â€œwe do not accept that safeguards should be restricted to the bare minimum or that we should not consider any reforms that may generate additional costsâ€) this concern has clearly driven their response, which accepts that reform must â€œdemonstrably reduce the administrative burdenâ€, and provide â€œmaximum benefit for the minimum costâ€.
As a result, the proposals will now be for:
Finally, one of the most controversial aspects has been the terminology used, and we are all familiar with the counterproductive effect it can have to try to discuss â€œdeprivation of libertyâ€ in some of the sensitive and emotional situations in which health and social care are delivered. Apparently the favourite alternatives suggested were â€œliberty safeguardsâ€, followed by â€œcapacity safeguardsâ€, and the Law Commission explicitly request further suggestions/feedback on this (toÂ Olivia.Bird@lawcommission.gsi.gov.uk).
So much of the original scheme has been pared back that it is quite difficult to get a clear sense of exactly what is left, or how it would work.
Some will see this as common sense prevailing, with a scheme of much more limited scope, less complexity and, no doubt, commensurately reduced costs being proposed (though a revised impact assessment has not yet been provided).Â Others may see it as an opportunity missed to address the wider issues, and in particular the prevention of deprivation of liberty and aspects of Article 8 rights, potentially simply delaying the need for more comprehensive reform, and arguably diluting the independent scrutiny and safeguards provided.
Local authorities and CCGs/health boards are likely to have strong views about the fairly radical change towards the apparent imposition on them of the principal responsibility under the new scheme without, as yet, a lot of detail about how this would work.
The only certainty, probably, is that the eventual scheme, if anything does reach the statute books in some yearsâ€™ time, is likely to look different again from this, just as it was never likely that the Law Commissionâ€™s initial proposals would ever make it into law exactly as drafted.
We await the final report and draft legislation (expected no sooner than December 2016) with great interest, and in the meantime remind readers again that the current framework, however imperfect, continues to govern deprivation of liberty cases and the issues must be tackled now as best we can with the tools we have.
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