The simple idea that has shaken adult social care to its foundations
Six months on from the Supreme Court ruling on deprivation of liberty in the ‘Cheshire West’ case, the impact of Baroness Hale’s judgement continues to be felt. A recent article by Lucy Series in Community Care online (Oct 1st), entitled ‘The simple idea that has shaken adult social care to its foundations’ gives a plain guide for the lay person to the judgement and its consequences – as plain, that is, as the complexity of the issues involved allows. Those ‘issues’ are the Mental Capacity Act 2005, the Mental Health Act amendments 2007, deprivation of liberty safeguards (DoLS), and Article 5 of the European Convention on Human Rights.
“There is a legal Latin phrase that runs Fiat justitia ruat caelum (let justice be done, though the heavens may fall), and the heavens do seem to be falling, at present, in the land of the DoLS”.
The article needs to be read in full; it also provides links to other relevant material on the web. Whilst complex legal principles are being discussed and clarification is being sought, the situation ‘on the ground’ is deteriorating with local authorities expressing concerns about the diversion of funds from ‘front-line’ care, and many worrying that the Court of Protection may be ‘swamped’, especially if applications for rulings are extended to cover not just ‘residential’ contexts (hospitals and care homes) but other contexts such as supported living.
The inadequacies of the Mental Capacity Act with regard to DoLS in the context of supported living were highlighted in June this year in the Report of the House of Lords Select Committee, which concluded that in some aspects the Act was ‘not fit for purpose’.
The Law Commission has now committed itself to a full review of ‘Mental Capacity and Detention’.
In its its announcement of 8th Sept launching this ‘project’, the Law Commission stated: “Our project considers how deprivation of liberty should be authorised and supervised in hospitals, care homes and community settings, where it is possible that Article 5 rights would otherwise be infringed. This includes considering the legislation underpinning DoLS in its entirety.”
The Law Commission gave the following timescale: “We are starting work on this project in summer 2014 and expect to publish our report, with recommendations for reform and a draft Bill, in summer 2017”.
The concern of many is ‘What happens in the interim?’.