Around 100,000 people with conditions such as dementia were detained in hospitals and care homes last year without the proper checks being carried out, the Law Commission has revealed.
Under current laws, those who lack mental capacity can be detained when it is deemed to be in their best interests. Various checks should be carried out as part of ‘Deprivation of Liberty’, to ensure the powers are being lawfully used.
Difficulties have arisen following a landmark legal case in 2014, which widened the definition of those who could be subjected to a Deprivation of Liberty and has left local authorities struggling to keep up with the associated administration. As a consequence, 100,000 people did not receive proper authorisation in 2016.
Acknowledging there was a problem, the Department of Health had asked the Law Commission to investigate and recommend changes in the way the system operates.
Now, the Commission has advised ministers to introduce sweeping changes to protect vulnerable people.
Law Commissioner Nicolas Paines QC said: “It’s not right that people with dementia and learning disabilities are being denied their freedoms unlawfully. There are unnecessary costs and backlogs at every turn, and all too often family members are left without the support they need.
“The Deprivation of Liberty Safeguards were designed at a time when considerably fewer people were considered deprived of their liberty. Now they are failing those they were set up to protect. The current system needs to be scrapped and replaced right away.
“We know there are enormous pressures on health and adult social care at the moment and our reforms will not only mean that everyone is given the protections they need, but could also deliver a saving to the taxpayer. That’s cash that can then be directly reinvested to support those most in need.”
Tim Steele, a Private Client Partner at Palmers, said: “Reports of this kind are a reminder to all of us that there can be no guarantee that we will always retain the mental capacity to make our own decisions and should prompt consideration over whether to put in place Lasting Powers of Attorney (LPAs) for health and welfare and / or property and financial issues.
LPAs allow you to appoint someone you trust to manage your affairs in the event that you lose mental capacity at some point in future. Ordinarily people will appoint a close relative or friend to fulfil the role of attorney.
“With an LPA in place you will have peace of mind that you have appointed an attorney who can make decisions for you in relation to a wide range of issues should the need arise.”