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Care homes' conflict of interest in deprivation of liberty decisions

12 October 2018

Vulnerable adults would be put at risk if care homes were given increased responsibility for decisions about their liberty, the Law Society of England and Wales said of proposed amendments to the Mental Capacity Act 2005 being considered on 15 October*.

Under measures put forward by the government, care home managers would take responsibility for coordinating the process which determines whether a person should be deprived of their freedom in a residential or nursing home.

Important safeguards provided under the existing Deprivation of Liberty Safeguards scheme would be weakened and, critically, the cared-for person would be removed from the heart of the process, as proposals do not include a requirement to consult them.

Law Society president Christina Blacklaws said: "Around 300,000 people with conditions such as Alzheimer's, severe autism or learning disabilities would be affected by these changes each year.

"These vulnerable adults may lack mental capacity to make decisions for themselves and be subject to highly restrictive measures in care homes and other care environments, including hospitals.

"Care homes that would profit from a decision to deprive a vulnerable person of their liberty must not be responsible for leading on the assessment. This would create a clear conflict of interest - and these institutions may lack the expertise or means to conduct such assessments.

"This bill fails to pick up on the Law Commission's recommendation that the cared-for person's views about their situation should be given particular weight when deciding what arrangement might be in their best interests.

"Anyone who is unable to make decisions for themselves due to impaired mental capacity has a right to be directly involved in decisions about their liberty."

The Law Commission consulted extensively over a three-year period to design a new system - that is manageable for care providers but also provides meaningful safeguards against arbitrary decision-making and potential abuse.

The shift of responsibility for carrying out independent assessments of vulnerable people from local authorities to care providers did not feature in recommendations from the Law Commission.

"This bill cherry picks recommendations made by the Law Commission and ignores many vital safeguards. What we need is a simpler system that ensures the right of the cared-for person to object to and challenge the arrangements," Christina Blacklaws said.

"The bill currently does not even require the cared-for person or their relatives to be told how to challenge a deprivation of liberty. Nor is the legal right given to request a review of a decision - rather, they must rely on an 'interested' person requesting a review.

"We urge the government to commit to empowering and protecting people who have little or no ability to protect themselves. These proposals need urgent and extensive revision if cared-for people are to have meaningful access to justice."

Notes to editors

Read the Law Society parliamentary briefing on the Mental Capacity (Amendment) Bill

  • Deprivation of Liberty Safeguards (DoLS) were introduced in 2007.
  • Local authorities deprived 220,000 of liberty in the most recent year, but there is a backlog of cases (estimated at over 100,000) and gaps in coverage - in domestic and assisted living contexts - and so government estimates the real number of cases to be 300,000 each year.

Mental Capacity (Amendments) Bill 2018 schedule.

About the Law Society

The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.

Press office contact: Harriet Beaumont | harriet.beaumont@lawsociety.org.uk | +44 (0)20 7320 5830