The law on deprivation of liberty is “unfit for purpose”, leaving thousands of people with dementia or learning disabilities detained in hospitals and care homes without the appropriate checks, the Law Commission has said.
The 2014 Cheshire West case widened the definition of who was subject to “deprivation of liberty safeguards”, putting local authorities under increased pressure and adversely affecting vulnerable people.
In a report and draft Bill published this week, “Mental capacity and deprivation of liberty”, the Law Commission proposes a new scheme, the “Liberty Protection Safeguards”. It would cut unnecessary dupliucation by taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions, extend responsibility for giving authorisations from councils to the NHS, and simplify the “best interests” assessment.
Law Commissioner Nicolas Paines QC said: “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.”
Andriy Buniak, solicitor at Mander Hadley, who specialises in Court of Protection work, urged people to have a solicitor prepare a Health and Welfare Lasting Power of Attorney while they still had capacity.
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