Providing protective care to people unable to consent to treatment

The Mental Capacity Act aims to protect people who lack mental capacity but need to be deprived of liberty in order to receive appropriate care and treatment in hospitals and care homes. But the safeguards are not meaningful for disabled and older people and their families, local councils and the NHS are struggling to meet their obligations under the law, and people who live in other settings – such as supported living – are being left unprotected.

The DoLS were intended to provide a process for ensuring that people who lack capacity to consent to their care are deprived of their liberty only if it is in their best interests. Assessments of their capacity are made independently of the hospital or care home, and decisions can be challenged by appeal to the Court of Protection.

But the system is technical and cumbersome and, since a Supreme Court judgment broadened the definition of “deprivation of liberty”, it has placed increasing burdens on local authorities and health and social care practitioners. More importantly the DOLS are not meaningful for disabled and older people and their families, and fail to protect their rights.

In a consultation opening on 7 July we are considering the existing Deprivation of Liberty Safeguards (DoLS), and how they can be replaced with a new scheme that achieves better, more appropriate outcomes for people with care and support needs and reduces unnecessary burdens on local councils and the NHS. We are also considering the safeguards that are necessary for those receiving care and treatment at home and in other family and domestic settings.

Nicholas Paines QC, Law Commissioner for public law, said:

“Experience with the Deprivation of Liberty Safeguards teaches us that a one-size approach does not fit all. The system of Protective Care we are proposing could provide meaningful safeguards to, as well as meeting the needs of, those individuals who, due to mental incapacity, cannot consent to their own care.

“The Deprivation of Liberty Safeguards have been called “not fit for purpose”. The reforms we are provisionally proposing would sweep away the DoLS and establish a new purpose for Protective Care – to provide appropriate care and better outcomes for disabled and older people and their families.”