Local Government analysis: On 14 March 2018, the Government’s final response to the Law Commission review of the law on deprivation of liberty was published, which broadly agrees with most of the proposals, and more significantly, agrees to replace the current Deprivation of Liberty Safeguards (DoLS) system. Ben Troke, partner at Browne Jacobson LLP, discusses the Government’s proposals and assesses whether they go far enough, as well as the likely timescales involved in implementing them.
Do the Government proposals do the commission report justice?
The Law Commission’s report ‘Mental Capacity and Deprivation of Liberty
’ was published on 13 March 2017, following a three-year review of the DoLS under the Mental Capacity Act 2005 (MCA 2005). It essentially recommends that DoLS be replaced ‘as a matter of pressing urgency’.
The Government largely accepts the Law Commission proposals in full, so we can look forward to some elements likely to be universally welcome, eg:
- a single scheme called Liberty Protection Safeguards (LPS) to replace the current DoLS covering patients and services users
- the safeguards being applicable in all settings (rather than just care homes and hospitals, like DoLS) and extended to include 16–17 year olds (rather than 18 under the current DoLS)
- the safeguards covering multiple settings for each patient/service user (P) (rather than needing a separate authorisation for each different place—with potentially absurd consequences, for example with respite care)
- the scheme making greater allowance for ‘fluctuating capacity’ and, crucially
- the introduction of a more streamlined process, allowing greater use of equivalent and previous assessments
Some aspects of the Government response may be potentially more controversial—pragmatically diluting the safeguards (or making them more proportionate, depending on your point of view) notably by:
- allowing authorisations for up to three years (after an initial maximum period of 12 months, followed by a maximum 12 months renewal—for example 12, then 12, then 36 months)
- provision for the independent scrutiny (the new Approved Mental Capacity Practitioner role—a ‘beefed up Best Interests Assessor (BIA)’) only in some cases, rather than universally, where:
- P is objecting to the placement; or
- the deprivation of liberty (DoL) is primarily for the protection of others rather than for P’s best interests (itself an approach that some may feel difficult to reconcile with the fundamental ethos of MCA 2005).
More widely, the Government has also adopted the recommendations for amendments to MCA 2005 as a whole, beyond the narrow issues of DoL, more notably:
- greater weight on advanced decisions by patients while they have capacity to do so
- a restriction on the availability of the ‘defence’ under MCA 2005, s 5 (no liability if you reasonably take a step or make a decision in someone’s best interests when you reasonably think they lack capacity for that decision)—so it will only apply for specified serious decisions (long-term accommodation, restrictions on contact, covert medication, serious medical treatment or treatment against P’s wishes) if there is a written record of the decision-making covering a prescriptive list of issues
- greater weight to be put on P’s own wishes, in best interests of decision-making
The Law Commission proposals framed this in terms of a presumption that P’s wishes should be determinative unless established otherwise, and the draft Bill they provided puts it that the decision-maker ‘in making the determination must give particular weight to any wishes and feelings ascertained’.
The Government response accepts the proposal, but puts it in terms that ‘taking past and present wishes and feelings into account already represents good care practice. We therefore agree that this should be enshrined in law’. However, simply listing wishes and feelings as a factor to take into account in a best interests decision represents the law as it is (MCA 2005, s 4(6))—though of course a string of judgments has put ever greater emphasis on this. The Law Commission proposal and draft Bill goes further, to a presumption that wishes are determinative, which would, it is thought, significantly change practice and the legal approach
The Government also accepts the need for an updated Code of Practice to accompany MCA 2005. The only recommendation rejected is the suggestion of statutory codification of the law relating to children (under 16) and decision-making capacity, ie Gillick competence etc—for which there is no appetite.
The crucial question of the interface between MCA 2005 and the Mental Health Act 2007 (MHA 2007), however, has effectively been parked until the current review of MHA 2007 is also complete.
On the whole, the Government has promised wholesale reforms, and the ‘pressing urgency’ seems to be accepted. However, some will be cautious of holding their breath, since the Government goes on that the reforms must ‘fit with the conditions and future direction of the health and social care sector, so we will continue to work through the detail of the recommendations and engage further with stakeholders especially on implementation’.