Thoughts on the Law Commission’s LPS proposals to reform DoLS

Readers will have been poring over the Law Commission’s proposals since March 17th. They clearly represent an improvement on the first and second iterations but I think that there are some serious difficulties with a few of the underlying assumptions, and in this post I will focus on just one, having reviewed the positives.

Of course there are many practical and good points in the report:
– the inclusion of all settings, by dint of removing the link with any specific sort of setting;
– the inclusion of 16 and 17 year olds, regardless of where they are living;
– the bonding together of community care and health law planning functions and MCA decision-making, because it should always have been thus, given that a refusal to accept care might always have been an incapacitated one, requiring a best interests decision by the council or CCG;
– the placing of the responsibility for authorising DoLS where it should always have lain, ie with the public bodies bearing the duty to the person in the first place, for appropriate meeting of their needs;
– the ongoing inclusion of people without seriously aggressive tendencies within the paper based regime, even if they are capable of being seen as having a mental disorder;
– the broadening of scrutiny to the nature of the arrangements in total, and not merely a focus on the narrow question: does this regime amount to deprivation of liberty?;
– the extension of authorisations to respite settings and all sorts of transport and temporary arrangements.

The Law Commission heard from many consultees that the DoLS don’t work in practice because a council will only offer one sort of a setting for care, as a result of resources difficulties, such that there is no real scope for a BIA to say that DoL is not necessary and proportionate. Examples are given where the council refuses to meet the needs in the person’s own home, because of the cost, and the only choice is between an unwanted care home and less care than is needed in one’s own home.

Instead of exploring the role of the BIA, and the scope of the assessment required of them, and the underlying public law framework as to what would be a lawful alternative offer, the Law Commission has simply accepted that as the legal truth and then moved on to getting rid of the roles of the Supervisory Body, and the BIA and tweaking the proposed role of the Approved MCP, adding in an Independent Reviewer, en route, for simpler cases, whose role is simple audit of the paperwork.

This approach seriously underplays the possibility that an offer of a care package that is not adequate to meet needs would not be a lawful offer to make to a person who was withstanding persuasion to go into a care home. If an AMCP isn’t to be allowed to say that, then calling an AMCP independent makes a mockery of any notion of professional values and integrity, and yet it will be social workers who’ve still GOT those things who need to be AMCPs!!

The Commission could have adopted the approach in the KK case, where the CoP judge used the absence of spelt out practicable alternatives to the care home, as the bare minimum for a competent decision on incapacity in the first place, to refuse to authorise deprivation of liberty. Funding Panels should always have been considering the choice between two alternative adequate options in deciding best interests, not deriving a package from a budgetary ceiling, or telling social work staff to present ONE option for approval.

If one plays out the care home vs home care possibility in the context of an application under the new LPS, the independent reviewer would just do the review on the papers, and the Approved MCP would do a real review, including making a fresh determination as to whether the conditions for an authorisation are met, as a human rights public body in their own name, by dint of their statutory role.

The suggestion that this should be done without regard to resource considerations is in my view even less than a BIA can currently do. A brave BIA would never regard a regime of DoL as necessary and proportionate if there was a less restrictive option that would cost the commissioner ONLY a BIT more than was currently being paid. A brave BIA would simply refuse to say yes to the authorisation, and that would stop the DoLS authorisation.

I absolutely endorse the findings of the Supreme Court in N this year that the CoP is not the equivalent of the Administrative Law Court, and cannot exercise a supervisory jurisdiction over the rampant cost-saving wheezes often presented by councils as lawful care packages; but the CoP is as much a public authority as any other court and under the Human Rights Act, in this country, it has no right or capability to make best interests orders about packages that are not in accordance with the law of this country.

I therefore take the very firm view that a package being offered by a council that would be judicially reviewable in the Admin Court cannot be foisted onto the CoP as the only offer for the judge to have to say yes to, just because it is not in breach of a person’s specific human rights with regard to a pleaded s7 point.

I am not, please note, saying that the fact that it wasn’t in someone’s best interests, makes it unlawful in public law terms, in the CoP: I am not suggesting that the parents were acting rightly in trying to challenge the adequacy of the package by asking the CoP judge to determine whether it was in a person’s best interests first, in the CoP. I know enough public law to know that a public law decision is valid until it is declared otherwise.

What I am saying is that IF a package is seemingly indefensible in public law terms, (whether or not anyone has issued JR proceedings in the Admin Court, prior to going to the CoP, and whether as defendant or applicant for a CoP order), then a CoP judge has no power to lend best interests legitimacy to an offer of care that could or probably would be invalid for unreasonableness, illegality, procedural unfairness or a breach of human rights. The CoP judge cannot be put in that position, in my view, BECAUSE the package contents being in accordance with ‘the law’ is a pre-requisite for the exercise of decision making functions not resulting in an unjustified interference with article 5 or 8 human rights.

So, likewise – if an AMCP thinks that the package being offered offends against public law, I do not believe that she or he can legitimately put forward support for an LPS authorisation without abandoning his/her statutory purpose and function. It is a distinct decision-making role, not mere audit.The AMCP has no jurisdiction to make a decision that is not in accordance with the law.

If this degree of independence is intolerable, but nobody can come up with a set of steps that should and could be taken by the AMCP, then the LPS begin to disappear behind smoke and mirrors.

Where’s the best forum for all this accountability?

The irony is that no decision has even yet been made about whether a tribunal, versus the CoP, is the right forum for DoLS disputes in the new era. The obvious way of dealing with the converging systems of public and private law (for private law is what the MCA is actually all about, defences against torts of assault and trespass, after all) then one MUST have a tribunal, which can have an appellate jurisdiction based on error of LAW, as well as taking decisions of a CoP nature. Once one has got that far, one will HAVE to allow for an appeal against a care package, whether or not the issue involves MCA considerations.

Against that backdrop, and all of a sudden, because of the election, fresh mention was hurriedly made by the government about ‘a cap’ on care costs – presumably the same sort of a cap as envisaged by Andrew Dilnot. The implications of the Dilnot vision had already convinced the government that some sort of an appeal system would have to be created – for all those middle income people not happy with their first ever social care allocation or decision on eligibility when they’d been to the council to get their meter started.

The idea that one would be able to challenge one’s care plan on MCA grounds, to a tribunal, or to the CoP, but not challenge the rationality of one’s care plan, in even a formal appeal system to an outside decision-maker, or have to use judicial review, makes no sense to me.

A tribunal for ALL health and social care matters, where principled decision making is the heart of the job, would seem to me to be inevitable, now.

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

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