Thousands of people living with dementia are being held in care homes without the appropriate checks, according to the Law Commission.
The report calls for changes to the Deprivation of Liberty Safeguards (DoLS) within the Mental Capacity Act which it argues are not fit for purpose.
Law Commissioner Nicolas Paines QC said: “It’s not right that people with dementia and learning disabilities are being denied their freedoms unlawfully. There are unnecessary costs and backlogs at every turn, and all too often family members are left without the support they need.
“The Deprivation of Liberty Safeguards were designed at a time when considerably fewer people were considered deprived of their liberty. Now they are failing those they were set up to protect. The current system needs to be scrapped and replaced right away.
“We know there are enormous pressures on health and adult social care at the moment and our reforms will not only mean that everyone is given the protections they need, but could also deliver a saving to the taxpayer. That’s cash that can then be directly reinvested to support those most in need.”
The report shows that since a landmark legal case in 2014, the definition of DoLS, which are intended to detain people who lack the mental capacity to consent within a safe environment when it is in their best interests, have been broadened resulting in 100,000 people being held without authorisation last year.
Official figures show DoLS applications increased 14-fold in 2015-16 to 195,840 in 2015-16 from 13,700 in 2013-14, with only 43% being completed.
Only 29% of the 43% were completed within the 21 days required by regulations.
The Law Commission recommends replacing DoLS with a new scheme called the Liberty Protection Safeguards, which would offer:
- enhanced rights to advocacy and periodic checks on the care or treatment arrangements for those most in need
- greater prominence given to issues of the person’s human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised
- extending protections to all care settings such as supported living and domestic settings –therefore removing the need for costly and impractical applications to the Court of Protection
- cutting unnecessary duplication by taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions
- a simplified version of the best interests assessment which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised.