A Legal Watchdog has warned that hundreds of thousands of people suffering with dementia or learning difficulties are being held in care homes and hospitals unlawfully.
The Law Commission has revealed that the system which allows detention of people who cannot make decisions for themselves is failing because of the huge number of applications involved. It believes a new, simpler system that ensures the right of vulnerable people not to be detained without authority is needed.
The Supreme Court extended the definition of ‘deprivation of liberty’ in 2014 to include those who were not free to leave their accommodation and were subject to continuous supervision (see: P v Cheshire West and Chester Council and P & Q v Surrey County Council). Following this step, the number of application from care homes and hospitals in England soared to 195,840 in 2015-16 – a 14 fold increase on the 13,700 applications made in 2013-14. Consequently the Law Commission has estimated that around 100,000 people did not get the required authorisation.
The Department of Health asked the Commission to consider the legal framework following the Supreme Court’s ruling and a House of Lords Select Committee Report released in 2014 which concluded the system was not fit for purpose.
Currently, if an assessment is disputed, it goes to the Court of Protection. However, the huge caseload has put an enormous burden on the courts. While the scheme is currently costing £250 million, the Law Commission believe this would be closer to £2.2 billion if all the cases were properly assessed.
The Law Commission would like to see a simpler system where disputed assessments were not referred to the Court of Protection. It also believes that the NHS should have responsibility for assessments rather than councils, given that the patients are under its care. The Commission estimates such a scheme would cost £236 million.
The Law Commission’s consultation paper and report can be found here.
What you can do:
Around 850,000 people in the UK suffer from dementia, for which there is no cure. This number is expected to grow to 131.5 million by 2050 (Source: Dementia Statistics).
Dementia can affect people of all ages although the risk is higher in later years.
A Lasting Power of Attorney for Health and Care decisions allows you to nominate someone you trust to make decisions about your health or care, should you should lose mental capacity. These decisions include whether you receive care in your own home or move into residential care. Everyone aged 18 or over should have this document in place – without it, an application to the Court of Protection has to be made which is a lengthy and expensive process. Speak to our Later Life Planning team about making a Lasting Power of Attorney today.