This page highlights, National and regional legal issues and policy updates.
NW ADASS Mental Capacity and Deprivation of Liberty
Sophie Rushton, Principal Solicitor (Manchester) and Chair of the LGG NW Lawyers Adult Special Interest Group organised a briefing event on the Law Commission’s recent report on Mental Capacity and Deprivation of Liberty.
NW Directors had expressed interest in this work as it is likely to inform future legislation and our LAs are all facing DOLS pressures. Alex Ruck Keene, a barrister who acted as a consultant to the Law Commission, joined over 70 local authority colleagues to discuss the report’s recommendations. The slides from the briefing are available here and a podcast here
This information will be of interest to legal teams and colleagues working on DOLS and Best Interest Assessments. It’s worth bearing in mind that the changes – if endorsed – would not come into effect for over a year, and so Alex advised local authorities to continue to understand their DOLS responsibilities.
39 Essex Street Chambers have additional guidance to support LAs in this area, including:
- A brief guide to carrying out best interests assessments
- Judicial deprivation of liberty authorisations: Updated November 2016
The Law Commission report itself can be found here
RIPFA Research and Policy Updates
Research in Practice for Adults (RiPfA) have published their February research and policy update which can be found here
Law Commission Recommendation on DOLS/Liberty Protection Safeguards
The following links are to three short summaries to support regional discussions about DOLS following the Law Commission recommendation to replace the law with a new scheme, called the Liberty Protection Safeguards.
Guardian summary: available here
Law Commission briefing: available here The Law Commission has delivered its final recommendations to ministers on replacing the Deprivation of Liberty Safeguards, after concluding the current system is “in crisis”. The government asked the commission to review the DoLS amid concerns councils were failing to cope with a tenfold rise in deprivation of liberty cases triggered by the Supreme Court’s landmark ‘Cheshire West’ ruling in March 2014.
Community Care summary: available here
The Law Commission has delivered its final recommendations to ministers on replacing the Deprivation of Liberty Safeguards, after concluding the current system is “in crisis”. The government asked the commission to review the DoLS amid concerns councils were failing to cope with a tenfold rise in deprivation of liberty cases triggered by the Supreme Court’s landmark ‘Cheshire West’ ruling in March 2014.
The claimant had challenged Oxfordshire’s decision in 2015 to reduce the personal budget and revise his support plan under the Care Act – reducing the personal budget from £1600 to £950 a week. The reduction was based on increased time spent alone by the claimant and reduced rates of pay offered to the PAs.
The Court ultimately dismissed all seven grounds of challenge, and in doing so gave detailed guidance on various matters, including
- the Care Act assessment duty,
- decision-making under the Act, including the distinction between “needs” and “wishes”, and the legitimacy of a local authority reducing funding provision as a means of “developing independence”,
- the proper approach by social workers and the courts to the section 1 well-being factors,
- the adequacy of rates of pay relied upon by the local authority in its support plan,
- the UN Convention on the Rights of Persons with Disabilities, its role in Care Act decision-making, and its use by courts,
- the section 27 duty to take steps to each agreement,
- the function of the courts generally in judicial review challenges to decisions made under the Care Act, and
- the use of after the event evidence in judicial review challenges to Care Act decision-making.
The judgment has wide implications for all those involved with Care Act assessments, provision and funding decisions, as well as those involved in judicial review challenges to such decisions. Full judgement available here
Davey Judgement – Weightman’s briefing available here