Unsurprisingly, covid-19 has pushed back the forthcoming changes to the deprivation of liberty safeguards (DoLS) rules. They were due to come into force this month (October) but it was announced this summer that they will not now come into force until next April.
Under the current system, there is an obligation on all providers to notify the Care Quality Commission (CQC) about the outcome of an application to deprive someone of their liberty. However, the CQC expressed concern at what it called a ‘sharp fall’ in the number of notifications since the pandemic began (particularly since the national lockdown was imposed in March) compared to a similar period last year.
So what difference will a new system make? Once the new system of the Liberty Protection Safeguards is in effect, deprivation of liberty can be authorised in order to provide care or treatment to someone who lacks capacity to consent to their arrangements - including those aged 16 years upwards.
Essentially, it is intended to be a more streamlined system to replace the existing one which many consider to be too bureaucratic and complicated. Government has said that in the run up to April 2021, a 12-week public consultation will be launched on the draft regulations and a new code of practice.
Meanwhile, law firms have started to see more enquiries from relatives wanting to remove their loved ones from care settings because of the pandemic. Leigh Day, for instance, was reported to have had a rise in families contacting them wanting to remove relatives who were subject to the deprivation of liberty rules and bring them home.
Early in the pandemic, the Court of Protection considered some of the issues in a ruling in BP v Surrey County Council and RP  EWCOP 17. This concerned an 83-year-old man who is deaf and has Alzheimer’s (a standard authorisation for deprivation of liberty was in place). His daughter wanted him discharged from the care home and into her sole care.
It was argued that the current constrictions, such as the suspension of contact with relatives imposed by the care home (and, of course, many others) constituted an unlawful interference with his rights guaranteed by Articles 5 and 8 ECHR. The CoP concluded that the daughter’s proposals to care for her father 24/7 on her own was unrealistic, (though a few weeks later the situation with P had changed and an agreement was reached between the parties that P could move in with his daughter).
Some weeks after this case, the government issued new guidance in light of covid-19, relevant to where an adult who lacks the relevant mental capacity for consent and are subject to DoLS authorisation. This includes limited in person visits from family members, etc.
What if practitioners are required to apply to the CoP? Hayden J (CoP vice president) issued important guidance in March. As well as the ‘obvious’ (such as in person visits are only to be made if absolutely necessary), it includes making creative use of technology: facetime; skype/business skype conferencing; and telephone conferencing. Hearings with time estimates of 2 hours or less will be conducted by telephone
Since the early months of COVID-19, much more is known about the disease itself and the impact on different sections of society. The elderly who are in care or residential homes have been hard hit by not being able to see friends and family and there is increasing noise that this is breaching their human rights.
It seems inevitable that a case will be brought under human rights legislation challenging the legality of the covid-19 restrictions as far as they impact the elderly and others in care settings. If it becomes a matter for the courts, it could be a fine balancing exercise between personal rights and the state’s exercise of its powers in a national emergency.
Written by Nicola Laver, a non-practicing solicitor and a qualified journalist. She is also editor of Solicitors Journal.