Mental Capacity (Amendment) Bill [HL]

Written evidence submitted by Catherine Brewin (MCAB78)

Executive summary of main points

· Intrusion into family life

· Unenforceability

· Definition of liberty

· Expense

· Research into the liberty protection safeguards

1. Background

Firstly I am grateful for the opportunity to contribute. I am a National Institute for Health Research fellow based at the University of Nottingham. I worked as a solicitor for ten years and retrained to be am occupational therapists working with people who live with dementia and their carers. My research is into the potential impact of the Liberty Protection Safeguards (LPS) may have for people who live with dementia and their informal carers in the community. I am developing an assessment of the LPS which enhances liberty for those who live with the condition, which would support carers in providing care. I am based at the University of Nottingham.

2. Intrusion into family life

The safeguards represent a significant intrusion into the family life of people living with dementia and their carers. There is an extensive body of research evidence of the stresses facing family carers who may now be told they are depriving the person they care for of their liberty. Leaving the house unsafely falls within a range of behaviours link to institutionalisation. Any addition to carers difficulties during this time may reduce the amount of time the person living with dementia is able to remain in the community.

3. Unenforceability

The law commission suggest the LPS will form part of the care plan and unpaid family carers may not even be aware of the safeguards but from a recent economic analysis it is apparent that dementia is the condition where the most unpaid care is provided out of all the most common serious health conditions. Many of the 650000 people living with dementia in the community are cared for by entirely unpaid carers. It is not possible to enforce the safeguards against unpaid carers. There is no contractual obligation as they are unpaid and accordingly any attempted imposition of the safeguards may be unenforceable.

4. Definition of Liberty

During my clinical work I may decide a person living with dementia is unsafe to return home. However well-meaning and correct this decision is it should be subjected to a high level of scrutiny as the implications are the loss of a person’s home. This decision is very different to a family carer preventing a person who lives with dementia leaving their home unsafely after a history of becoming lost. There is a need for a definition of liberty which recognises the extent of the loss of freedom and exists upon a continuum in the same way best interests does. Those who lack capacity and are unable to leave their home without assistance should not be defined as having lost their liberty as this is an entirely hypothetical loss.

5. Expense

The Deprivation of Liberty Safeguards have proved highly expensive with the law commission estimating that 2 % of the entire cost of the NHS would be spent on the implementation of the safeguards if correctly applied. As the majority of people who live with dementia live in the community this cost is likely to increase. These resources would be better placed in providing interventions which would facilitate patient benefit. If the Liberty Protection Safeguards are adhered to the cost would be potentially be even greater for a lack of discernible patient benefit.

6. Research

The aim of my research is to produce an assessment of the LPS which facilitates patient’s liberty whilst also supporting carers in providing care. I am presenting my findings at the national occupational therapy conference am due to commence interviews with people living with dementia and their carers soon for the next stage of the research.

I would welcome the opportunity to discuss this further

January 2019


Prepared 22nd January 2019