15th December 2015

Department of Health issues critical response to Law Commission’s draft proposals for a deprivation of liberty safeguards replacement

The government feels the Law Commission’s proposals for a legal framework to replace the deprivation of liberty safeguards could be “unnecessarily” complex and costly to deliver.

The Department of Health’s response to a consultation on the proposals raised concerns that parts of the Law Commission scheme failed to meet ‘three tests’ – that any system should be user-friendly, a good use of public money and deliver ‘real’ benefits to people lacking capacity to consent to their care arrangements.

Frontline staff have said reforms to the current system are badly needed as the pressure on deprivation of liberty caseloads is unsustainable.

The Law Commission’s project has long been seen as the best hope of an improved system. However, the government’s critical response to the consultation suggests that unless substantial changes are made, ministers won’t back the commission’s final proposals. The situation raises questions over whether legislative change will happen. Under the current timetable, the commission is due to publish a draft parliamentary bill setting out its final proposals next year, and the government will decide whether to adopt, reject or amend this.

The DH response expressed fears that some of the Law Commission’s proposals would create more legislation to improve practice around existing laws, such as the Care Act and Mental Capacity Act. For these issues, officials believe working with professionals to achieve “cultural” change may be a better approach.

Signalling a wish for the commission to come up with a simpler, cheaper system in the final proposals put to ministers in December 2016, the DH said: “We are concerned that the proposed system is unnecessarily complex”.

Any revisions to the proposals should also be ‘simulation tested’ with professionals, service users and families to make sure they work in practice, it added.