When I was small, Saturday mornings were devoted to Uncle Mac who played music requested for children on the Light Programme. Amongst these we learned wisdom such as,

‘If all the world were paper

If all the sea was ink

What would we have for bread and

cheese?

What would we have to drink?’

Shirley Temple sang a shortened and changed version of this. The original dates from the 1600s.

In the 1980s, when I was chair of the Section of Old Age Psychiatry at the Royal College of Psychiatry, we were taken to task by a member working in Cornwall who believed that it was a legal requirement that all patients with dementia who lacked capacity to agree to admission to hospital, even if this was for ‘respite’, should be detained under the Mental Health Act. Although we respected our colleague’s earnest wish to comply with the law, no other member of the Section present at our open meeting agreed that this was necessary, nor in the best interest of individuals or families.

Sometime later came the Bournewood case (note 1) wherein a younger patient, lacking capacity because of learning disability and autism, was detained by staff at a day centre because they believed his behaviour had become such that he was in need of inpatient care. The Mental Health Act was not invoked. His family did not agree that he should be admitted to hospital but their view was set aside. This unsatisfactory practice led to legal challenges and scrutiny in this country, including the House of Lords. The House of Lords ruled that the legal safeguards in this country were sufficient if used appropriately. The matter was then considered by the European Court of Human Rights which found that there was need to modify the law in England to satisfy its Article 5 which protects the freedom of individuals.

The change which followed was a modification of the Mental Capacity Act, the Deprivation of Liberty Safeguards, DoLS (note 2).

This legally satisfactory series of decisions has set in train a bizarrely destructive and expensive series of developments. The expectation was that a few thousand patients might become subject to the new category of detention. From the start the numbers were larger than anticipated 11,887 in 2012 to 2013.

A majority judgement by the Supreme Court in 2014 in the ‘Cheshire West’ case (note 3), which was not one relating to an individual with dementia, led to a tenfold and more escalation in applications. The essence of the ruling was that anyone living in supervised care, who lacks capacity, is deemed to require registration under DoLS. The complex multiple assessments required by DoLS cost £1,000 for each assessment. Local Authorities have been left unable to cope with the numbers or the cost. Families have been horrified that arrangements entered into willingly and with no problems on any side, have become transformed into formal, legal detention.

Matters were worsened by advice from the Chief Coroner that all deaths occurring to individuals registered with DoLS were ‘deaths in state detention’ and must be processed by inquest by the coroner. This heaped more stress on families and costs to the system. Happily this legal nicety and its perverse consequences have been countered by a change of words agreed in the House of Lords in November 2016. From April this year deaths under DoLS are no longer deemed deaths in state detention (note 4).

The bigger task of divining an alternative to DoLS, which meets the requirements of the European Court of Human Rights, and makes sense to ordinary people and professionals, has been exercising the Law Commission for the last two years. They have now published their report and suggestions for a change of the legal framework – read it here.

It is a marvellous piece of work.

The more positive name ‘Liberty Protection Safeguards’, LPS, indicates an ambition that the new legislation will lead to actions which are seen to be helpful by individuals, families and professionals.

Registration will be required for ‘arrangements’ to be made in the interest of individuals who are recognised to be ‘of unsound mind’. This antiquated terminology is chosen to be in keeping with that used by the European Court of Human Rights in its rulings on these matters. It will be welcomed for its appeal to sense and common usage. For the most part decisions will be made, without additional cost, by reliance on assessments from services who know the individual and their family. In complex cases, referral will be made to an Approved Mental Capacity Professional, a new breed of professional who will be trained and supported in this role. Most will be drawn from the ranks of current assessors. This points to the beginning of new costs in the system. Costs which will be increased as everyone being considered for arrangements is to be supported by an approved person or advocate. Arrangements must take into account ‘a person’s ascertained wishes and feelings’ and will be ‘necessary, proportionate and in the best interests’.

This is not just about where an individual will live, but more about what their lives will be like.

The compass of LPS is wider than that of DoLS for it includes individuals in domestic settings as well as those in hospital, hospice or care home. The potential clientele is therefore double that of DoLS. Applications will be made to Local Authorities or Hospital managers. The vision is that this is done before an individual is placed in care or hospital, so that all options can be considered. This is a commendable ambition but may prove difficult to sustain as so often it is sudden change of circumstance which determines what is to be done and when. We shall see.

A LPS will usually run for 12 months. There will be a system for appeals, the details of which are yet to be agreed. The status can be carried over between settings, home, hospital, care home rather than requiring a reassessment for each care setting, as is the case with DoLS. On the other hand it can be revoked if it becomes clear it is no longer needed as an individual regains capacity.

The estimated cost of the new scheme is between £20,000,000,000 and £28,000,000,000 every year.

By calculations based on maybe and perhaps, benefits are estimated at £70,000,000,000 to £128,000,000,000.

Costs and benefits here are rounded from the more detailed figures given in the report. Figures like this are unimaginable to most of us. The estimates of costs come from consideration of best guesses of reality, but my guess is they will be found to be underestimates. Benefits are fanciful intangibles, dependent on avoidance of possible legal challenges or gains in QALYS.

But, you know, the benefits may be very considerable in other ways. This system will make it very difficult for authorities to avoid making ‘necessary, proportionate and in the best interest’ arrangements for individuals who lack capacity because of unsoundness of mind. It goes much further than the limited scenario which led to the European Court ruling and the subsequent modification of the Mental Capacity Act by DoLS. It covers all that ground but also extends to a comprehensive Gold Standard legal schema for care of an endlessly changing cohort of the most vulnerable people and their families.

The Law Commission has done us proud.

1. Link here to the Faculty of Old Age Psychiatry’s guidance issued following Bournewood.

2. Link here to the Alzheimer’s Society’s account of DoLS. 

3. Link here to the Cheshire West judgement and see p19 for the striking phrase used by Lade Hale – “A gilded cage is still a cage”.

4. Link here to the guidance changing coronial practice.