Today the Law Commission has published an interim statement on their current thinking on reform of the Deprivation of Liberty Safeguards. Anyone who has followed the saga so far will be aware that the initial proposals put forward for consultation by the Law Commission received a decidedly luke-warm reception from the government. Mostly the government's position seemed to be that the proposals were too expensive. Oh and they didn't seem too keen on the idea that protection of an individual's fundamental human rights and freedoms should involve anything remotely resembling law either!

The response put the Law Commission in a tricky position. How far to go in fighting for a strong legal basis as the only defence of the vulnerable? How far could projected costs be cut whilst still retaining anything approaching adequate safeguards?

Today we got some hints as to the way the wind is blowing.

Substantially simplified and somewhat watered down proposals.

The Commission is teetering on the fence as to whether to stick with its original tribunal proposals or retain the jurisdiction of the Court of Protection. Having experienced how quickly the fairness and adequacy of tribunals can be undermined by being severely underfunded I am hoping like mad they will ultimately plump for the latter.

Out has gone the multi-level/multi-environment proposal in favour of a slimmed down scheme focussed narrowly on deprivation of liberty (article 5) and the attempt to introduce serious protection for rights to family life (article 8) has been scrapped.

The most worrying changes are:

  • that the proposed role of Approved Mental Capacity Professionals (beefed-up Best Interests Asssessors) has been scaled back
  • responsibility for "making the case" shifts to the commissioning body (from the care provider)

These changes reduce independent scrutiny whilst increasing the responsibility on those commissioning the care to protect the rights of those receiving it. In a world of austerity-led commissioning and care planning where knowledge and understanding of the law is not deeply embedded and 'human rights' has been turned into a dirty term in public discourse, I have reservations that this will be enough. Those who know their case law will be all too aware that, historically, it hasn't been.

The Commission has held fast though to its insistence on legally enforceable rights to advocacy. This is a potentially encouraging safeguard, but it remains to be seen whether it will survive the ultimate taking forward of the final proposals by a government with strong cost cutting motivations and little respect for (or understanding) of the relevance of law. Even if it does, the usefulness will depend on well trained, knowledgeable independent advocates. And in an advocacy market driven by short-term contracts and driving down of prices, it will be difficult to maintain and grow the needed workforce.

Even if proposals similar to those outlined today were implemented, the onus would be on friends, family and advocates to know their legal rights and act to enforce them. With such poor knowledge and understanding of human rights and the Mental Capacity Act amongst those working in social care, advocates and the public at large, it seems frustratingly inevitable that little improvement will ensue.

It is hard to blame the Law Commission. They are trying to walk a precarious tight rope in a highly adverse climate. They need to focus on what is realistically achievable and hope for the best. We have yet to see the final proposals and I am sure they will do their best to make them as legally robust and sound as they think they can get away with. I am much more dubious, however, about the odds that a system with any legal teeth will ultimately be passed into legislation in the current political climate.

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