Difficulties and disagreements are evident in many areas, not least in reaching agreement about a statutory definition of what a deprivation of liberty actually is. The Joint Select Committee is concerned that a definition closely aligned to the ‘acid test’ will not resolve the current issues around the number of backlogged cases – is this the right approach? Are we seeking a definition that eases administrative woes rather than upholding the rights of an incapacitated person? It seems that striking a balance is posing a challenge and as a result the Government’s current position is to remove any definition from the Bill and incorporate guidance in the supporting Code of Practice. ‘Guidance’ does not seem the most effective way of enabling professionals to identify a deprivation of liberty or of upholding human rights.
A recent decision by the Local Government and Social Care Ombudsman (18 004 809) against Staffordshire County Council’s approach to prioritising DOLS authorisations was critical of the council’s own guidance which failed to comply with the current legislation; how much more scope would there be for misinterpretation and an administrative narrowing of a deprivation definition if guidance replaces statute in this area?
A definition may be more challenging but is certainly more appropriate, and we look forward to a more substantive outcome…ping pong indeed.
Here's a link to the recent report: https://www.parliament.uk/documents/joint-committees/human-rights/Govt-response-7-12-JCHR.pdf
Article by Louise Courtney