• Taking your eyes off the road 29 October 2018 | View comments

  • 29th October 2018 | by David Jolley

    I was outraged by the damage done by mindless legislation which created DoLS (Deprivation and Liberty Safeguards) and progressively changed it by questionable case ruling precedents: Thousands of people lacking capacity but content with the care they were receiving have found themselves subject to certification at massive and useless cost. Any movement to hospital or another care setting requires additional costly assessments and paper work. For many months all deaths for people dying whilst detained under DoLS had to be dealt with by the coroner. Thankfully this last most bizarre twist has been corrected but all the rest of DoLS’ havoc remains quietly, expensively and perplexingly in place.

    It has been a pleasure to make small contributions to the work of the Law Society in its review of DoLS, eventually producing a scholarly but practical report based on their wisdom and knowledge and informed by fieldwork in care situations, formal consultations and further informal discussion with people who are involved (‘stakeholders’). I was impressed by the comprehensive, positive and ingenious recommendations of that report.

    This report was passed to Parliament as it prepared to revise the DoLS legislation.

    I have been aware that there have been further discussions and comments from colleagues and others who would have views; but I have not followed the progress, feeling that as I do not now have direct clinical involvement with services I have become less equipped to have a significant voice. This decision has, no doubt, rescued me from much pain. I have presumed that the clout of the Law Society is such, and respect for their work so secure, that something worthwhile would emerge from the scrummage.

    First twinges of uncertainty came a couple of weeks ago at our Friday meeting where I was told the draft bill would not extend to people (with dementia or other causes of lost capacity) who are not already in care. This week an email from a friend drew my attention to a letter ‘Ministers must rethink how to care for the most vulnerable in society’ to the Times - Red Box October 22nd from Baroness Thornton www.thetimes.co.uk/article/ministers-must-rethink-how-to-care-for-the-most-vulnerable-in-society-g906zt77k In this she drew attention to shortcomings in the current proposal for amendment of the Mental Capacity Act.

    The Law Society had worked hard and thoughtfully to produce an inspirationally well informed, costed and balanced report. This has been butchered and weakened beyond recognition.

    The Law Society had produced a characteristically elegant, but never-the-less forthright briefing for the House of Lords: The Law Society Parliamentary Brief: Mental Capacity (Amendment) Bill 2018. House of Lords Committee Stage September 2018. In this they say:

    • The proposed scheme will weaken safeguards
    • Resource constraints do not justify failing to implement the safeguards recommended by the Law Society fully
    • Getting this wrong now will affect thousands of people for many years
    • Lacking sufficient safeguards, the proposed Bill is not fit for purpose. It requires serious reconsideration and extensive revision
    • The new Bill must include the right of individuals to object and to challenge the arrangement. If the individual is unable to object, there must be an independent review · The wishes and feelings of cared for people must be centre stage
    • The scheme must comply with the principles of the Mental Capacity Act 2005 and the United Nations Convention on the Human Rights of Persons with Disabilities
    • It must ensure that assessments are independent and there is an effective review process
    • The situation of young people (aged 16-17 years) has to be reconsidered

    It is clear that there are many basic flaws in the current draft. The proposal is that the new bill will adopt the name: ‘Liberty Protection Standards’, which is the name suggested by the Law Society. For this to be right, the new bill must clearly comply with the standards which the Law Society has presented in its report and restated in this briefing.

    You look away – and just see what happens!

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