With an ageing population and councils being asked to play their part in paying down the national deficit, adult social care has been a huge topic of discussion over the past few years. It was telling that, within a Budget not awash with new money, an extra £2bn was invested in the area.
And with good reason. Sadly, living longer doesn't necessarily mean living longer with the absence of ill health. Many of us will develop long-term condition that could impact on how we make decisions about our care or treatment.
Take dementia. If current trends continue, the Alzheimer's Society forecasts that the number of people with dementia in the UK is set to increase by 40% over the next 12 years.
For local authorities responsible for adult social care, treating people with dementia and others who lack the mental capacity – like those with learning disabilities – can be a challenge.
Sometimes people with these conditions will need to be confined or made subject to restrictions in a place like a care home when it is in their best interests. For example, a person with dementia may need to be kept in their care home to prevent them from wandering off, which could put them in danger.
This is known as a deprivation of liberty and an authorisation process – called the Deprivation of Liberty Safeguards (DoLS) – is meant to ensure checks are in place so this is done lawfully.
But following a Supreme Court decision in 2014 called Cheshire West, the definition of a person deprived of their liberty was significantly widened. Now official figures show that hospitals and care homes in England made 195,840 DoLS applications in 2015-16 – more than 14 times the year before.
Understandably health and social care services have been unable to cope with the huge increase in cases and the added administrative burden they bring. DoLS referrals are also being left unassessed and statutory timescales are being routinely breached. Last year only 43% of referrals were completed in the year. Of those only 29% were completed within the 21 day time limit set in regulations.
This is clearly unacceptable and the Department of Health quickly recognised the issue. They asked us at the Law Commission to review the legal framework and recommend suitable new protections.
At the Law Commission we want to ensure that the law is as fair, modern, simple and cost-effective as possible. The way we work is by conducting in-depth research into a specific area of law, consulting with as wide a range of people as possible through an open public consultation, and then making recommendations to Government.
Since 2014 we have been engaging with many of you in the sector to gauge your views on the DoLS. Not only to come up with a solution which eases pressures on councils, but also to provide the best possible protection for service users.
This week we published our recommendations to government for law reform of the DoLS. We are clear that DoLS are failing those they were set up to protect. It's not right that people with conditions like dementia and learning disabilities are being denied their protections unlawfully because of a law unfit for purpose. The current system needs to be scrapped and replaced right away.
We are recommending replacing the law with a new scheme called the Liberty Protection Safeguards. We estimate that the Liberty Protection Safeguards would cost £236m a year in total – a saving of £10m annually on current costs. But the savings could be much more.
If the current inefficient system was used in every case that the law requires we think this could cost up to £2.2bn per year.
The new Liberty Protection Safeguards would not only save money, but will also allow the backlog of cases to be cleared by cutting unnecessary duplication. There would be more use of existing assessments, a streamlined signing off process, authorisations that can cover more than one setting, and scope to allow renewals for those with long-term conditions.
This is alongside protections for patients like enhanced rights to advocacy and periodic checks on the care or treatment arrangements.
We have made our independent views known to government and it is now up to them to decide whether to act on them. But since our creation in 1965 we have a pretty good track record – with over two-thirds of our recommendations being implemented in whole or in part.
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 councils and the taxpayer.
Nicholas Paines QC is law commissioner for public law
