Analysing the Government response to the review of the law on deprivation of liberty
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’.
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Practitioners will be mindful of proper resourcing, training and support for implementation of any reforms. The Law Commission impact assessment puts the anticipated cost of these proposals at around £2bn, and makes that look attractive compared to the benefits it asserts valued at around £8bn (mostly in avoiding potential liabilities for unlawful DoL compensation, and in quality of life improvement for those benefiting from the new safeguards). In contrast, the anticipated cost is £16bn for proper implementation of the current DoLS system as it stands. But, even so, finding £2bn for implementation may also be a challenge, even if that does prove to be the right figure. Most fundamentally, there would be much less trouble around DoL if MCA 2005 was being properly implemented universally, and resources might better be focussed on that, some would say.
Is there any prospect of getting this through Parliament in this Government with Brexit taking every available slot?
The Government response, though recognising the ‘pressing urgency’ of reform, is a bit woolly on the timescale—referring to the need for further careful consideration, and to legislation ‘when parliamentary time allows’. It is tempting, if cynical, to say that Parliament is likely to be rather pre-occupied for some considerable time. And once you then factor in the time for the legislative process, and a reasonable time for transition, implementation and training, it is very hard to be confident that these reforms will be in place and in effect inside the life of this Parliament, even if it lasts a full term to May 2022.
In the event this Government falls, will this recommendation survive another Parliament?
A new Government would of course be free to take its own policy approach. What is the impact of the status quo having for families dealing with loved ones with capacity issues needing protection, and local authorities having to process them? In the meantime, continuing the status quo brings all the problems rehearsed by the Law Commission report, and all too familiar in practice:
long delays in the process due to a huge mismatch between scale of demand and resources;
a one-size-fits-all approach with little scope for nuance and proportionality
confusion and frustration at the bureaucracy;
inefficiency with cases needing repeated separate DoLS authorisations for different settings, or needing court applications where outside the limited scope of DoLS, for example for cases of DoL in the community;
large numbers of people without effective safeguards of their rights.