Deprivation of Liberty Safeguards Assessments

Philip Davies Excerpts

Wednesday 17th June 2015 Westminster Hall

[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)).