Mental Capacity and Deprivation of Liberty – an update on reform

Caroline Cooke is Policy Manager at BGS and Premila Fade is BGS’s End of Life Care Lead.  Here they explain the background to, and significance of, the report published by the Law Commission, “Mental Capacity and Deprivation of Liberty” on 17 March 2017.

What are DoLS?  The Deprivation of Liberty Safeguards (DoLS) are a set of protections for adults who lack the mental capacity to consent to deprivation of their liberty by, for example, admission either to hospital or a care home for treatment or care.  They were introduced as part of the Mental Health Act 2007.  The intention behind their introduction was to ensure that no-one is deprived of liberty without good reason, and the right of legal challenge is built into the authorisation process.  The idea was to close the so called ‘Bournewood gap’ whereby adults admitted informally (i.e. not via the Mental Health Act) did not have an automatic right to appeal.  The European Court of Human Rights (HL v United Kingdom) ruled that this lack of safeguards was a breach of article 5 ‘The right to Liberty’ of the Human Rights Act.

European Courts and Old People

Graham Mulley is emeritus professor of elderly care, University of Leeds.

image Gwenaël Piaser

The current issue of Age and Ageing features an original paper on Older Europeans and the European Court of Justice by Israel Doron.  Why should busy geriatricians be interested in legal activities in Europe?

The short answer is that these courts have the potential for championing old people’s human and legal rights.  These courts often judge in favour of elders, yet the number of cases referred is small and is not increasing – despite the greater numbers of elderly citizens.

Interesting times indeed – the Francis Report and Care of Older People

Prof Paul Knight is President of the BGS and is Director of Medical Education and Consultant Physician at the Royal Infirmary, Glasgow.

The oft quoted expression, “may you live in interesting times”, not as approbation, but as a threat, certainly seemed to apply recently.

Apparently, it probably isn’t a Chinese proverb but appeared in a science fiction novel in the 50’s. As I was preparing my contribution to this edition of the newsletter the Francis report was released. There will be much about the report elsewhere in this and subsequent newsletters, as we consider what it means to the way we work.

Inevitably, Francis means most to colleagues working in the NHS in England, but I would urge all to review the Executive summary, not least because Robert Francis will be an invited speaker at the Belfast Spring Meeting and it will give you some context. The recommendations for regulators such as the GMC and NMC will apply UK wide and not just in England.

BGS Spring Scientific Meeting is in Belfast

On behalf of the President of the BGS and the 2013 Spring Meeting Organising Committee, Dr Rosemary Kelly, extends a warm welcome to the BGS Spring Meeting in Belfast which is taking place from 17 – 19 April 2013.

A combination of local, national and international experts will deliver an interesting and varied scientific programme. The Northern Ireland Minister for Health will be in attendance and Thursday’s guest lecture will be delivered by Robert Francis QC, author of the newly released Francis report.

We begin the conference on Wednesday afternoon, highlighting exciting developments within the expanding areas of nursing home medicine, psychiatry liaison and orthogeriatric medicine. There will also be a thought-provoking analysis of medicolegal aspects of geriatric medical practice as well as a timely update on appraisal and revalidation.

BGS on the Francis Report

The Francis report challenges the NHS at all levels. Many of the failings in care described in the report affected old and vulnerable patients. Policy, regulatory, organisational, funding and professional lessons must be learnt.

There must be an immediate focus on what we know will improve quality. Central to this is the need for health professionals to demonstrate clinical leadership. They should be advocating for patients and their carers, challenging poor practice and embodying good practice. No doctor or nurse should assume that failings in basic care, safety or dignity are someone else’s problem and all should speak out when they see neglect or poor care. This extends to clinicians in senior leadership roles in hospitals who should have a clear focus on the care delivered on wards and experienced by patients and their families.

Debate:- Funding social care for older people- The Gathering Storm

The question of how to best fund care of frailer older people in their latter years remains unresolved. Current rules require all older people with assets above £23,250 to personally fund all care requirements and all assets [including property] are included in financial assessments. The arrangements have been criticised by many for forcing those who have worked hard to build assets through their life to

In the past 13 years there had been two independent commissions, three public consultations and now three white papers. The latest of these, the Dilnot report, called for a system for the elderly whereby there was universal coverage: the total cost of care would be capped at £35,000 with social support for old people extended to those with assets of £100,000, incurring a total estimated cost of £4.2 billion in 2025.

The social care issue is thorny and has multiple facets:-

• Can we afford it? – the present economic climate brings to harsh reality the ability of the welfare state model to provide for all aspects of life on limited resources
• Who should fund it? – the government, families or the third sector
• Universal coverage? – Should any legislation cover all people without any exclusions or prejudice? What happens to those, with financial means, who do not wish to contribute to their own care?
• Financial fairness? – What is “fair”?  Who should pay? How much should they pay?
• Equity of provision across the UK? – How do we minimise variability in how legislation and policies are exercised between regions?

What are your views on funding for long term care? Join the debate.