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BASW response to Law Commission on Mental Capacity & DoLs

Following the House of Lords Select Committee on the Mental Capacity Act, the Government asked the Law Commission to review the Deprivation of Liberty Safeguards (DoLs). The Select Committee findings were published in March 2014. In July 2015, the Law Commission produced a consultation paper on Mental Capacity and Deprivation of Liberty. BASW has now responded to this consultation.

Key issues raised by BASW include:

  • There are key differences between the legislation in Wales and in England which need to be fully recognised
  • BASW agrees the term ‘Deprivation of Liberty’ can be unhelpful for social workers and a replacement needs to be found. The term ‘Protective Care’ has been proposed by the Law Commission. Some BASW members feel that this is too paternalistic
  • The delay in implementation of the Care Act cap poses a real danger many people will continue to receive care without an assessment because they are self-funding. These people may well be ‘deprived of their liberty’
  • The Cheshire West judgement is correct, it is the mechanisms for applying it which fall short
  • The current system is buckling under the volume of cases, widening the scope of DoLS to include ‘domestic settings’ and possibly ‘day care’ would make an already unsustainable system collapse unless a substantial increase in resources is made available
  • BASW is broadly in support of the Law Commission proposal of a new role/ qualification ‘Approved Mental Capacity Professional’, providing the training for the role and the implementation of the role is properly resourced
  • DoLS should apply to 16 to 18 year olds
  • BASW broadly supports the concept of two levels of assessment in relation to a deprivation of liberty – ‘supportive care’ and ‘restrictive care’
  • BASW has significant reservations about the proposals to give doctors the power to make a 28 day Deprivation of Liberty order

The Law Commission plans to consider the issues raised by respondents to the consultation over the next 12 months. BASW has stated clearly we feel as the organisation representing social workers we need to be involved in subsequent stages.

BASW members previously gave evidence to the House of Lords Select Committee on the Mental Capacity Act saying Deprivation of Liberty Safeguards (DoLS) are not “fit for purpose” and need a radical overhaul.

Read BASW's response to the Law Commission review of Mental Capacity and Deprivation of Liberty in full HERE