Deprivation of Liberty Safeguards Assessments

(Limited Text - Ministerial Extracts only)

Wednesday 17th June 2015 Westminster Hall

[The Minister for Community and Social Care (Alistair Burt)]

It is a pleasure to serve under your chairmanship once again, Mr Davies. I thank the hon. Member for Stockport (Ann Coffey) not only for raising an issue that she is closely involved in and has a great deal of knowledge about, but for kindly sending my office a copy of her speech to enable us to give the best possible response. I appreciate both that and the detailed but measured way in which she presented what has become a very difficult situation. She quoted the Chief Coroner as saying that

“the consequences of the law, however, may not have been appreciated at the time of enactment.”

If we all had £1 for every time that phrase was uttered, we would all be fairly rich. In answer to his quote, I would say, “You bet they weren’t,” but let me develop my argument further.

I welcome the opportunity to provide clarity and more information about what my Department is doing to support professionals in relation to DOLS. DOLS derive from the simple premise that a person who may lack capacity through a mental health disorder and is receiving care and support from the state has as much right to freedom of movement and choice as someone with full capacity. The background to DOLS is not always appreciated, but it is important, and I doubt that there is any difference between the hon. Lady and I on that point.

The phrase “deprivation of liberty” is, like “state detention”, an emotive one and derives from the legal framework. It may seem counterintuitive, but in some circumstances, a deprivation of liberty can be entirely appropriate in providing care and treatment for an individual who may lack capacity. Furthermore, it is worth emphasising that DOLS are firmly based within the Mental Capacity Act and, as such, reflect the Act’s core principles: namely, that a person’s wishes and feelings must be central to the decision-making process, and that the least restrictive form of care and treatment should be pursued wherever possible.

I stress that DOLS are a positive tool in that the assessments undertaken ensure that when a person is—in the legal sense—deprived of their liberty, it must be in their best interests. I entirely agree with the hon. Lady that where DOLS are working effectively, they can prevent unnecessary restrictive measures and prevent people with dementia from being required to stay in one place simply because it is easier for staff.

As the hon. Lady said, until March 2014 the number of DOLS assessments a year was approximately 13,000. The Care Quality Commission noted in its annual reports that that figure seemed low. Then, in March 2014, in the case of Cheshire West, the Supreme Court clarified the law on what constitutes a deprivation of liberty by setting out a so-called acid test. I will not repeat that test now because the hon. Lady and the House know it well, but it is clear that the effect of the Supreme Court judgment has been to lower the threshold for what constitutes a deprivation of liberty when compared with previous standard professional practice. Official statistics from the Health & Social Care Information Centre have borne that out, showing that there have been 113,000 applications in 2014-15—roughly a tenfold increase on the previous year.

I will turn to the wider issues related to that in a moment, but let me concentrate first on the implications for coroners, which the hon. Lady spent the majority of time dealing with in her speech. The Supreme Court’s judgment had a number of unforeseen implications. One, which I know to be of particular concern to her, is the rise in coroners’ investigations.

The Chief Coroner for England and Wales has provided guidance to coroners in which he states his view that, under the Coroners and Justice Act 2009, the death of a person who is subject to a DOLS authorisation is regarded as a “death in state detention” and, as such, should be subject to a coroner’s investigation. Helpfully however, the Chief Coroner states that coroners are able to make their own judgment on that matter. He also states that, where appropriate, any inquest could be paper-based and certainly that neither a jury inquest nor a post mortem is required. None the less, I have heard distressing reports of coroners’ investigations leading to unforeseen delays in funeral arrangements and causing great anguish for relatives.

The Department has issued guidance urging local authorities to work closely with their coroner to develop a proportionate response. I am aware that many have done so and, for the time being, that may be the way through the difficulties. I can tell the hon. Lady today that my Department will issue further guidance on this specific matter in the next few weeks. Furthermore, I commit to writing to the Chief Coroner to ensure that we are doing all we can to encourage an approach that minimises the potential distress to relatives.

[Ann Coffey]

As I think I said in my speech, part of the problem is that the Chief Coroner is a judge and his guidance is seen as a question of law. If he could perhaps make it clearer that he is giving discretion to coroners, that might also help move things forward. Might the Minister take that up with the Chief Coroner?

[Alistair Burt]

The hon. Lady, in her concluding remarks, suggested that there might be a legal challenge to the Chief Coroner, but at this stage, I am not persuaded that that would be the best way forward. Perhaps we might leave it at this: depending on the Chief Coroner’s response to my letter, I might seek a meeting with him, so that I might have the opportunity to talk to him in a slightly different manner about some problems that the hon. Lady has raised and get an opportunity to take things further. I ought to get the Chief Coroner’s written response in the first place, but I appreciate her point of view.

We want to encourage an approach that minimises relatives’ potential distress, which, as the hon. Lady set out, can be severe. The key to best practice is good communication and information exchange between partners in the system. Leicester City Council is indicative of a local authority that has worked closely with its local coroner. Together they have designed a shared protocol that includes the clear steer that, unless there are suspicious circumstances, notification of a death can wait until office hours, negating the need for distressing out-of-hours visits from uniformed police officers. In the vast majority of those cases, police involvement will not be necessary. Certainly, 999 calls are not appropriate.

I am grateful to the hon. Lady for stressing the importance of this issue. The Law Commission, which I will refer to in a second, is also looking at the issue of coroners’ investigations, and I want to see the results of that.

Let me say more about the Law Commission, having dealt with coroners to an extent. The Government’s policy is twofold in dealing with the significant challenge that has been given to local authorities and health and care providers now charged with implementing DOLS. First, we seek to understand whether legislative change can provide a system that is sustainable in the long term and that better balances the protection of individuals against the need for minimum bureaucracy to ensure that existing limited resource is maximised. Secondly, we are seeking to provide practical support and guidance to manage the challenges in the interim.

The case for a thorough review of the legislation in this area is unambiguous. The legislation underpinning DOLS was introduced by the then Government in 2007. It was criticised by Select Committees of both Houses, even before the implications of the Supreme Court judgment became clear. Following the judgment, the Government are funding the independent Law Commission to review the legislation underpinning DOLS. It will launch a four-month public consultation on a proposed new scheme on 7 July 2015.

Following the hon. Lady’s intervention, it has occurred to me that she and other parliamentary colleagues may appreciate a dedicated consultation event with the Law Commission on the parliamentary estate. If she agrees, I shall endeavour to make arrangements for that. I will contact the Law Commission to suggest such an event and I hope that it might want a session here so that it can listen to the expertise of colleagues. I am sure the commission would benefit from such expertise, and I will write to her and let her know what it makes of that suggestion.

Given the criticism of the current DOLS legislation, and bearing in mind the likelihood of unintended consequences, I strongly believe that it is important for the Law Commission to be given the time to consider the entire legislation in the round and, if appropriate, propose a comprehensive solution. It would be unwise to rush into specific legislative changes, the repercussions of which might not be clear, so I am not tempted at the moment to make any changes to the regulations.

However, I agree with the hon. Lady on greater urgency. The Law Commission’s review was scheduled to be completed, in the form of detailed policy proposals and a draft Bill, in the summer of 2017. I think, having taken up my duties, that that needs to happen quicker. Accordingly, I have proposed, and the Law Commission has agreed, an acceleration of the review to ensure that it will now be completed, in the form of detailed policy proposals and a draft Bill, by the end of 2016. I know that that is still some time away, but bearing in mind the complexity of the issue, I do not think we can afford to get the next bite at this wrong, so I hope that the hon. Lady welcomes that news.

In the interim, my Department has been working with various partners to support the system’s response to the Supreme Court judgment. I reiterate now that the response to that judgment must be rooted in the principles and values of the Mental Capacity Act. Our efforts have to be focused primarily on realising real benefits for individuals. DOLS are about people, not paperwork. My Department has issued clear guidance that has emphasised the importance of a proportionate Mental Capacity Act-centred approach, and emphasised that so-called bulk applications for all the residents of a care home are not acceptable. DOLS apply only to those who lack the specific capacity to consent to their accommodation. Many in care homes and hospitals will have that capacity and so not be eligible for DOLS. That must be made clear.

We recognise that the scale of the challenge set by the Supreme Court means that some local authorities will be unable to process DOLS applications within the 21-day legal timeframe. The Care Quality Commission has been clear that providers will not be unfairly punished for such technical breaches. However, the CQC has been equally clear, quite rightly, that a do-nothing approach is unacceptable, so providers and local authorities must have a plan in place for ensuring that those who stand to benefit most from a DOLS assessment receive one in a timely manner.

The Department has funded a reduction in the non-statutory bureaucracy accompanying the DOLS process, reducing the number of application forms from 32 to 13. The Association of Directors of Adult Social Services, which delivered that project, deserves particular praise for the support it has provided to its member organisations since the Supreme Court judgment.

The Department has funded the Law Society to produce excellent comprehensive guidance, in collaboration with practitioners, to assist in identifying a true deprivation of liberty, and in March this year, the Government announced that they would provide local authorities with an extra £25 million to support their efforts on DOLS in 2015-16.

I reassure the hon. Lady that I understand the concerns that some local authorities have about the cost of DOLS, and I praise the hard work of local DOLS teams. However, I am aware that there is considerable variation among local authorities as regards the number of applications that they have been able to process. Clearly, it is important that we identify and learn from current best practice, so my officials are in close contact with providers and local authorities, and I have instructed them to make further visits across England this summer to continue to understand the local response.

Although some may baulk at the idea of 100,000 DOLS applications a year, we should remember that every one of those applications represents a person having their care independently scrutinised. DOLS can help to shine a light on care that is unnecessarily restrictive and does not put the person’s views first and foremost. Therefore, we should strongly back the principles of DOLS. Our shared challenge now is, through the Law Commission review, to understand how those principles can be better applied in the day-to-day reality of the health and care system and after the unintended consequences of the judgment.

I thank the hon. Lady for raising these important issues. My Department and I would be grateful for any further insight she may have, conscious as we are of her expertise in the social care field. I hope that we have touched this afternoon—

[Philip Davies (in the Chair)]

Order.

Motion lapsed (Standing Order No. 10(6)).