Free article: Mental Capacity and Deprivation of Liberty Safeguards update

Published: Monday, 08 May 2017

Maria Nicholas looks at the recommendations from the Law Commission Report on MCA and DoLS.

Summary

  • The Law Commission has published a report on the Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards (DoLS), containing a number of recommendations.
  • The Law Commission has also prepared a draft bill which needs to be debated by Parliament before it is enacted in its final form. Until then, the law will remain as it is.
  • A replacement scheme for DoLS has been recommended by the Law Commission, which is being called the Liberty Protection Safeguards (LPS).
  • Where the scheme applies; LPS will have much wider application than DoLS, which addresses one of the key problems with DoLS.
  • The role of best interests assessor will be replaced with that of the AMCP, who will become involved only if a person is objecting, or the reason for their deprivation is only due to the risk they may pose to others.

Why do I need to know about this?

The Law Commission has made recommendations as to how the law around Deprivation of Liberty Safeguards (DOLS) should operate. Should they became law, they will affect all those in managerial positions in care homes, supported living placements, day centres and hospitals.

This article contains a brief oversight of the Law Commission’s report and draft bill (272 pages in total).

When will these changes take effect?

The Law Commission has prepared a draft bill which needs to be debated by Parliament before it is enacted in its final form. Until then, the law will remain as it is.

Key recommendations

The Law Commission has recommended a replacement scheme, which is being called the Liberty Protection Safeguards (“LPS”).

The definition of what constitutes a deprivation of liberty will remain governed by case law, and so is not addressed by the Law Commission.

Where the scheme applies

DOLS only apply when an individual is deprived of their liberty in a care home or hospital. If someone is deprived of their liberty in a supported living placement, or at home, the Court of Protection has to authorise the deprivation.

The most significant recommended change is that it is not the person’s deprivation at a particular placement which is authorised, but rather the care arrangements in place for that person. There is therefore no restriction on where this might apply to, and it would even encompass deprivations which arise during transport from one place to another.

Age

DOLS only apply to those aged 18 and over. LPS are intended to apply to those aged 16 and over.

Responsible body

Under DOLS the responsible body is the relevant local authority.

Under LPS, if the individual is in a hospital or in the community and their care is funded by their Clinical Commissioning Group (CCG), the responsible body will be the relevant NHS Trust or CCG. For all others, the responsible body will be the local authority.

The responsible body will have to consider requests for authorisations, arrange the required assessments and give the authorisation.

Conditions required for LPS

These conditions need to be met for the responsible body to authorise the arrangements:

a) The person lacks capacity to consent to their care arrangements, which give rise to a deprivation of their liberty.
b) A medical assessment concludes that the person is of unsound mind.
c) The care arrangements are necessary and proportionate, having regard to the likelihood of harm to the person and/or other individuals if the arrangements were not in place, and the seriousness of that harm.
d) Friends and family have been consulted.
e) The authorisation would not conflict with a valid decision of a donee or a deputy as to where the person should reside or receive care or treatment.

You will note that there is no best interests assessment. The suggestion is that best interests will have already been considered prior to the current care arrangements being formulated.

The assessments to establish a) – c) above are to be carried out by at least two assessors, who must be independent of each other.

Procedure for independent review

Once the assessments have been carried out, an independent reviewer will need to confirm whether he/she considers that it is reasonable to conclude that the conditions for an authorisation are met.

The independent reviewer must refer the matter to an Approved Mental Capacity Professional (AMCP) for further scrutiny if:
a) It is reasonable to believe that the person does not wish to reside or receive care/treatment at a particular place; or
b) The arrangements are regarded as necessary and proportionate wholly or mainly be reference to the likelihood and seriousness of harm to others.

The AMCP will act on behalf of the local authority but will be independent of decision-makers involved in the person’s care, and not involved in their day-to-day care. The AMCP must meet with the person, consult other key individuals and then make his/her recommendation as to whether the deprivation should be authorised.

Recording and remit

If the authorisation is to be given, it must be recorded in an ‘authorisation record’. The record must include the details of the arrangements which have been authorised, including the care plan.

The authorisation record itself does not give authority to deprive the person. This would only be given under a new s.4AA of the MCA, which would provide a defence to civil or criminal liability in respect of acts done pursuant to an authorisation.

The defence does not include acts relating to medical treatment or restricting contact with third parties. Neither can the LPS be used to restrict contact between the person and others.

Duration

An authorisation can be put in place up to 28 days before the care arrangements are due to commence.

The Law Commission recommends a power to deprive someone of their liberty to enable life-sustaining treatment or action believed necessary to prevent a serious deterioration in the person’s condition, whilst the responsible body determines whether to authorise the arrangements. This interim authority is not time limited, and would expire once the responsible body had decided whether or not to authorise the arrangements.

It is also recommended that a power be given to deprive someone of their liberty in an emergency situation, defined as one where immediate steps need to be taken to prevent serious harm to the person and it is not reasonably practicable to apply to a court for an order to authorise the deprivation, for a responsible body to determine whether to authorise the arrangements under the LPS, or to make an application for detention under the Mental Health Act.

An authorisation will be able to initially last up to 12 months. It could then be renewed for a further 12 months. Thereafter, it could be renewed for periods of up to 3 years.

Legal challenge and advocacy

An ‘appropriate person’ replaces the role of Relevant Person’s Representative. They must not be someone involved in the person’s day-to-date care. If there is no appropriate person, an advocate must be appointed.

If the individual or their appropriate person wish to challenge the authorisation, an application must be made to the Court of Protection.

Monitoring

The Law Commission proposes that the government should have regulation-making powers to require certain bodies to monitor and report on the operation of the LPS. This responsibility could be given to bodies which already exist, such as the CQC.

Coroners

It is recommended that the deaths of individuals under the LPS do not necessarily trigger a coroner’s inquest. This change will be contingent on new safeguards being introduced however, in cases where the death is attributed to a lack of care.

Advance consent

A person, with capacity, could give advance consent to specified arrangements that would, but for their consent, give rise to a deprivation of liberty. If advance consent is given, there will be no deprivation.

Claims against private care providers

There is a recommendation to introduce a new s.4C MCA, which would enable individuals to claim against private care providers if there had been an unlawful deprivation of their liberty. It is suggested that where care or treatment arrangements are put in place by, or on behalf of, a private care provider, which give rise to a deprivation of liberty and have not been authorised, a person may bring civil proceedings against the private care provider. Currently, such claims are only brought against the local authority, although occasionally a care home might be joined as a defendant.

The Law Commission has proposed the definition of a private care provider to include those responsible for the management of private care homes and independent hospitals. The definition would cover non-NHS hospitals and care homes providing personal care that has not been arranged or funded by a public authority.

Comment

There are some benefits to the majority of the recommendations made by the Law Commission as regards DOLS. There are, however, still some question marks. For example, as above there is an assumption that best interests will have been considered prior to the care arrangements being proposed. However, if capacity has not yet been considered, will there necessarily have been a thorough consideration of best interests? Those involved may still be working on the assumption that the individual has capacity and so would not consider best interests.

The application to a wider set of locations is a benefit, and it is clearly preferable for families, local authorities and care providers not to have to go to court unnecessarily, and that instead there should be a comprehensive statutory procedure to deal with such situations (unless of course there is a dispute). However, extending the scheme into the home does concern some, ie should the state be intervening to that extent in family home life? Is it really a breach of an individual’s ECHR Article 5 right to liberty when they are being given 24-hour care by their family, in their own home?

The introduction of the ability to bring cases against private care providers for unlawful deprivation of liberty will no doubt be of significant concern to many in the industry. It will require in-depth knowledge of the procedures and high-quality training for all staff to guard against such claims being brought.

For now, however, things will remain as they are and DOLS will continue to be used. Parliament needs to scrutinise and debate the recommendations before passing any new bill, and with the government’s focus on Brexit, it could be some time, possibly even several years, before it turns its attention to this matter.

Toolkit

Use the following item in the Toolkit to put the ideas in the article into practice:

  • Table – Key aspects of Liberty Protection Safeguards v Deprivation of Liberty Safeguards

About the author

Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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