Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Sian Phillips (MCAB36)

RE: Proposed changes to Deprivation of Liberty Safeguards

To whom it may concern,

I am writing to express my concern about the information shared so far regarding the proposed overhaul of the DoLS system. I currently working as an Independent Mental Capacity Advocate and also as a paid representative for a mental health charity. In this role, I am part of DoLS assessments and also support people with their rights under the DoLS, including working as litigation friend in s21a appeal challenges.

Unfortunately, I can’t see that the ‘Liberty Protection Safeguard’s’ will provide any safeguard or protection for those subject to detention under the Mental Capacity Act. In particular, I am concerned about how inaccessible individual’s rights will become under the new proposals. In my current experience, there is already a lack of understanding of the right of appeal and there is a lot of gatekeeping of people’s rights, for example through family members acting as RPR. I often hear "well she bangs on the door to be let out but she doesn’t really understand where she is" or "they do ask about going home a lot but they wouldn’t be able to live there safely" and am given reasons why people’s expressions and behaviour should not count as an objection when they clearly are one. It is really important that vulnerable people are given a voice and that their legal rights are upheld with such a serious issue.

There is a hugely reduced role for advocacy and independent scrutiny under these proposals which I find very scary. I work with care homes and hospitals and other organisations day in and day out. Although often very hard working and well intentioned, the understanding by these services and individuals around the Mental Capacity Act and DoLS is very limited, in some cases, extremely so. It is therefore very concerning that many of the roles and responsibilities around the new LPS assessments and referrals would be completed by staff members with no required professional qualification or specialist knowledge. The limitations in representatives and the ceasing of DoLS conditions will also further limited the ability for others to appropriately scrutinise care and treatment under the DoLS and to inform people and support them with their rights. Additionally, the length of authorisations being extended adds to my concern.

It is not unusual for those assessed under the DoLS to be found to have capacity and then have increased choice and control around their circumstances. Under the proposed LPS, I can easily envisage a situation where individuals who have capacity to make their own decisions around accommodation for the purposes of care and or treatment will be wrongly detained with no opportunity to appeal against this or be supported to change their circumstances. Effectively imprisoned and with arguably less rights than those in prison or detained under the Mental Health Act.

In my view, though not without some faults, the current DoLS system is fit for use and practice with the main issue of its current running being the critical under funding of this area. I cannot see that we would propose changes that will so massively impact people’s rights and their self-autonomy on any other population group and sadly I feel it is a reflection of the attitude towards those with a learning disability, mental health issue or of an older age by society as a whole that these proposals have got as far as they have so far. I feel utterly shocked and completely horrified at the thought of the LPS coming to pass in any form close to its current proposals.

Yours faithfully,

Sian Phillips

January 2019


Prepared 15th January 2019