Update to para 6.129, page 221: Conclusion and Future Legislation
The Law Commission published its final Report on Mental Capacity and Deprivation of Liberty on 13 March 2017, along with a draft Bill. The full report is available here and a summary of the Law Commission’s conclusions are set out below. As anticipated, the Law Commission focus was on creating a more workable process, whilst placing P at the heart of decision making.
What was the purpose of the project?
- To review the Deprivation of Liberty Safeguards (“DoLS”) and consider how the law should protect people who need to be deprived of their liberty in order to receive care or treatment and lack the capacity to consent to this
What does the report recommend?
- The DoLS should be repealed and a new scheme introduced as a matter of pressing urgency
- The draft Bill attached to the report contains the recommended replacement scheme, called the Liberty Protection Safeguards (“LPS”)
- The draft Bill would also amend other parts of the Mental Capacity Act (“MCA”) to provide increased protection for people whose rights to respect for their private and family life and their home under Article 8 of the ECHR are at risk, whether or not they risk being deprived of their liberty
What are the relevant principles and objectives involved?
- To put P at the centre of decision-making
- To ensure priority and weight is accorded to the P’s wishes and feelings
- To give prominence to issues of P’s human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised
- To ensure options are considered when they truly remain options
- To impose a discipline on the care and treatment planning process itself
- To streamline the process so as to make it more efficient and practical
What are the main changes are proposed?
- The LPS would apply to 16 and 17 year olds as well as those over the age of 18 years
- The LPS would apply to a deprivation of liberty in the community as well as in hospitals and care homes as is currently the case
- An authorisation under the LPS would authorise particular arrangements for a person’s care or treatment insofar as the arrangements give rise to a deprivation of liberty and not merely the deprivation of liberty itself (the term “arrangements” is deliberately broad and could cover a much wider set of circumstances than previously e.g. arrangements for attendance at a day centre, returning P to a place of residence upon P absconding, transport between places)
- An authorisation may cover more than one place or set of arrangements e.g. residence at a care home as well as travel and admission to hospital for treatment, rather than requiring separate authorisations for each
- Bringing forward formal consideration of the justification for a deprivation of liberty so that it occurs before the arrangements are made, rather than only afterwards. It will no longer be permissible to impose a deprivation of liberty on someone until the proposed arrangements have been authorised
- Replacing urgent authorisations with a statutory authority to deprive someone of liberty temporarily in truly urgent situations and in sudden emergencies
- The responsible bodies for authorising a deprivation of liberty would be the local authorities and hospital managers that are commissioning the person’s care or treatment arrangements that will give rise to the deprivation of liberty
- Where arrangements are being put in place or commissioned by a body other than an NHS body or local authority – as in the case of private medical treatment or “self-funders” in care homes – the private care or treatment provider will need to apply to the local authority for authorisation
- Creation of a new civil claim for damages where private care or treatment providers put in place arrangements that give rise to a deprivation of liberty which are not authorised
- An authorisation can last for an initial period of up to 12 months and can be renewed for a second period of up to 12 months and thereafter for an indefinite number of periods of up to three years
- The draft Bill would introduce a mechanism for renewal, rather than fresh authorisation
What would the new process entail when the responsible body seeks to authorise arrangements which would give rise to a DoL?
- Consider the following questions: is P over 16 years old, does P lack the capacity to consent to the arrangements, is P of “unsound mind” within the meaning of Art 5(1)(e) ECHR?
- Consider what arrangements which are proposed or in place to enable the care or treatment of P, and which would give rise to a deprivation of that P’s liberty require authorisation: that P is to reside in one or more particular places; that P is to receive care or treatment at one or more particular places; or the means by and manner in which P can be transported to a particular place or places?
- Decide who can authorise the arrangements: the relevant NHS body or the local authority
- Appoint an advocate or appropriate person for P
- Arrange the appropriate formal assessments: capacity assessment (in accordance with ss. 1,2 and 3 of MCA), medical assessment (is P of “unsound mind” in accordance with Art 5), “necessary and proportionate” assessment (are the arrangements justified as being necessary and proportionate having regard to (1) the likelihood of harm to the person if the arrangements were not in place and the seriousness of that harm; or (2) the likelihood of harm to other individuals if the arrangements were not in place and the seriousness of that harm)
- Carry out the required consultation
- Carry out an independent review (by someone not involved in day to day care of P) or, in two categories of sensitive cases, obtain the approval of an Approved Mental Capacity Professional (“AMCP”)
- The second assessment and approval by the AMCP is required:
1 – in cases where it appears that the person does not wish to reside in or receive care or treatment at a particular place or proposed accommodation
2 – where the arrangements are wholly or mainly for the protection of people other than the person being placed
- Consider whether the arrangements conflict with a valid decision of (1) a donee of a lasting power of attorney; or (2) a court appointed deputy
- Consider if it is reasonable to conclude that the conditions are met and authorise the arrangements if so
What if the situation is urgent?
- Urgent authorisations would be replaced with a statutory authority to deprive someone of liberty temporarily in truly urgent situations and in sudden emergencies, but only to enable life-sustaining treatment or to prevent a serious deterioration in the person’s condition
What safeguards are provided?
- Regular reviews of the authorised arrangements (and the right to request a review)
- Provision of an advocate or appropriate person to represent and support them both during the initial authorisation process and during the period of the authorisation itself
- The right to challenge the deprivation of liberty in court
Are there other reforms proposed to the Mental Capacity Act 2005?
- Yes, the LPS would operate within a broader set of proposed reforms to improve decision-making across the Mental Capacity Act
- All decision-makers would be required to consider P’s ascertained wishes and feelings when a best interests decision is taken and give weight to them
- A requirement to prepare a written record of the decision-making process (or unable to rely on defence in s5) in respect of best interests decisions:
- to move P into particular accommodation
- to restrict their contact with others
- to administer certain types of medical treatment to P (serious medical treatment, covert medication and treatment against P’s wishes)
- The record must confirm (amongst other matters) that a formal capacity assessment has been undertaken and rights to advocacy have been implemented
What happens now?
- The Government will respond to the Law Commission’s proposals and decide whether to change the law as recommended or with amendments
- Substantive change is unlikely to happen in the next year or two
- In the meantime the current system remains in place
- However, those wishing to improve practice and prepare for likely changes would do well to bear in mind the importance of the following:
- Finding out and attributing due weight to P’s wishes and feelings in best interests decision-making
- Early consultation with family members and other relevant professionals
- Early consideration of care and residence options and any consequent deprivation of liberty they may entail
- Good documentation of best interests decisions