Readers will no doubt remember the less than complimentary views expressed by the Health Select Committee in its post-legislative scrutiny of the MHA 2007 (and, in particular, its remarks regarding the DOLS regime introduced by that Act into the MCA 2005). The Department of Health has now published its response. We reproduce the material section relating to DOLS below:
R12. The Department to initiate an urgent investigation into the implementation of Deprivation of Liberty Safeguards with a report and action plan to deliver early improvement to be submitted to Parliament within a year.
R12.1 We consider that the Deprivation of Liberty Safeguards provide an important statutory framework of scrutiny, checks and balances which both empower people and protect their rights. The Government led a major programme over five years to implement the 2005 Act, including the Deprivation of Liberty Safeguards, which made a significant contribution to changing practices. However, the Government recognises that further progress needs to be made and welcomes the work of the Health Select Committee and that of the House of Lords Committee conducting post legislative scrutiny of the 2005 Act in helping it understand what further action is needed.
R12.2 The Department will work with national and local partners through a newly set up Mental Capacity Act Steering Group to examine the evidence to understand the progress which has been made so far implementing the Deprivation of Liberty Safeguards. As part of this, it will look closely at the evidence heard by the Health Select Committee during its work and the current evidence being gathered by the House of Lords Committee conducting Post Legislative Scrutiny of the Mental Capacity Act 2005.
R12.3 Working together, we will identify the key priorities to make further progress and agree the actions each organisation can take to continue to implement the Mental Capacity Act and the Deprivation of Liberty Safeguards in health and care settings. The Department considers that improvements in the understanding anduse of the Mental Capacity Act 2005 amongst health and care professionals will support improvements in the use of the Deprivation of Liberty Safeguards.
R12.4 As a first step, the Government is revising the Code of Practice for the 1983 Act for publication in 2014. This will include new guidance on the interface between the 1983 Act, the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards. In response to concerns we have heard about the complexity of the forms which support the process for depriving someone of their liberty, the Department will review and simplify them, learning from experience over recent years.
R12.5 The Department will work closely with NHS England which is committed to supporting further action to implement the Deprivation of Liberty Safeguards. NHS England has appointed safeguarding leads throughout England to support CCGs to deliver safeguarding assurance and accountability. Training is offered to staff using e-learning tools and through multi-agency workshops with local Safeguarding Adults Boards. Each commissioner has a named lead with responsibility for supporting clinicians with advice relating to these issues.
R12.6 The Department will also work closely with CQC which is responsible for monitoring compliance with the Deprivation of Liberty Safeguards. CQC will continue to develop its view of the Deprivation of Liberty Safeguards as it monitors compliances, engages across the system and develops its annual report. CQC will use its next report, which will be published at the end of this year, to promote examples of good practice, including evidence from a sample of Independent Mental Capacity Advocacy services on the operation of the Safeguards and to extend the work it started last year looking at the activities of local authorities as supervisory bodies.
R12.7 The Government will publish an assessment of progress and the actions taken to continue to improve the implementation the Deprivation of Liberty Safeguards by the end of 2014.
We would also note that the Department of Health declined to accept the recommendation of the Health Select Committee (as is the case in Wales) to extend entitlement to the services of Independent Mental Health Advocates to all mental health patients in England rather than only those detained under the Mental Health Act 1983. Responding to the concern expressed by the Committee as to ‘de facto’ detentions where informal patients are told that they will be detained if they try to leave, the Department of Health stated (at R.26) that: “Voluntary inpatients should never be told that if they try to leave hospital they will immediately be detained under the 1983 Act. It is, however, important to ensure that no clinician feels constrained from making correct use of section 5 of the 1983 Act (emergency holding powers) when appropriate. It may be necessary to detain an inpatient under section 5 where they seem likely to pose a risk to themselves or others if they were to leave hospital.” The Department of Health further promised that the principles of the use of the power to detain and the principle of least restriction would be made clear when the Code of Practice to the MHA 1983 is revised in 2014.