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Mental Capacity Act (MCA) and Deprivation of Liberty (DoLS) update

We give a brief update on statistics and issues which have arisen in relation to the Mental Capacity Act 2005 (MCA) and deprivations of liberty (DoLS) as a result of the Cheshire West decision where what amounted to a deprivation of liberty was defined by the Supreme Court.

A person without capacity is deprived of their liberty if they are under continuous supervision and control and are not free to leave.

What has happened?

It is recognised that the Cheshire West decision has increased the burden on local authorities and healthcare providers as well as Coroners but there are proposals to address these issues and we will discuss these below.

1. National statistics about the use of DoLS-facts and figures for DoLS currently

The DOLS statistics for 1 April 2015 to 31 March 2016 in England have been published. Key headlines from this document are as follows:

  • The greatest number of DoLS applications since DoLS was introduced in 2009 have been made to Councils -195,840 of which 105,055 were completed.
  • There is variation between the regions both because of varying structures in population and different interpretations of the safeguards in each region. The North East had had the highest rate of applications with 900 per 100,000 adults compared with 319 per 100,000 in London.
  • A standard authorisation should be assessed and a decision reached within 21 days. 40% of applications were completed within 21 days in the North East with the South West and West Midlands only completing 18%. The average duration for completion was 83 days, well above the target of 21 days.
  • The scale of increases since 2014 was directly attributable to the Cheshire West decision.

2. Coroners Inquests for patients subject to DoLS

In his 2015-16 annual report, the Chief Coroner reported a substantial increase in the caseload of Coroners as a result of the Cheshire West decision.

Anyone who dies while subject to a DoLS in a hospital or care home dies “in custody or otherwise in state detention” and therefore an inquest must be held even if the death is clearly from natural causes (Coroners and Justice Act 2009).

There were 7,183 DOLS matters reported to Coroners in 2015 which all had to be processed. This also caused further distress to the families.

To address this issue, the Chief Coroner has proposed that the 2009 Act is amended to remove DoLS cases from the category of “in state detention”.

3. Law Commission review of MCA and DoLS

In July 2015 the Law Commission opened a consultation about the MCA and the DoLS process.

An interim report was published on 25 May 2016 and a final report with recommendations and draft legislation is due to be published in December 2016. We will update you on this as soon as this report is published.

The Law Commission have concluded that current DoLS processes should be overhauled and replaced by something more workable through legislative change.

What does this mean for me?

Whilst Cheshire West has increased the workload of local authorities, NHS bodies and Coroners, the Law Commission is aiming for the new proposals to streamline the processes reduce the administrative burden and costs while still ensuring that those who need it receive the protections they need.

How can Ward Hadaway help?

For further information on the issues raised in this update, please get in touch with Jeffrey Keeble or a member of our Healthcare Team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.

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