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Liberty protection safeguards to protect vulnerable people in care

Date:9 AUG 2018
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Private Client analysis: Amendments to mental health legislation aim to correct some of the current system’s obvious failings. Ben Troke, solicitor at Browne Jacobson LLP, discusses the Mental Capacity (Amendment) Bill, which introduces new law to protect the rights of people who do not have the mental capacity to make decisions about their care, and replaces the much-criticised deprivation of liberty safeguards (DoLS).

What are the key changes to the Mental Capacity Act 2005 proposed by the draft legislation?

In a way it is a little misleading to refer to this draft legislation as amending the Mental Capacity Act 2005 (MCA 2005), as it rejects the opportunity (and the recommendations of the Law Commission of March 2017) to amend the substance of MCA 2005 – for example, to put more emphasis on the person’s own wishes when making best interests decisions, to make more provision for advanced decision-making before someone loses capacity, or to clarify the line between MCA 2005 and the Mental Health Act 2007 (MHA 2007).

Instead, the Mental Capacity (Amendment) Bill is focused entirely on the DoLS, which were themselves a largely unloved, and ultimately unsuccessful, amendment to MCA 2005 added by MHA 2007, and brought into force in 2009.

DoLS were hurried through Parliament in response to the European Court of Human Rights judgment in the case of Bournewood (HL v UK App No 45508/99, [2004] All ER (D) 39 (Oct)), which held that common law necessity was an insufficient safeguard of rights to liberty (under Art 5 of the European Convention on Human Rights (ECHR)) where a patient/service user (P) lacks capacity to consent to arrangements that amount to a deprivation of liberty, and no other formal legal framework (such as MHA 2007) is being used. DoLS was always seen as a little bureaucratic and unwieldy, and its faults were magnified beyond redemption when the Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another [2014] UKSC 19, [2014] COPLR 313, identified a wider definition of deprivation of liberty (DoL) to trigger the safeguards, which meant a ten-fold increase in the number of referrals to DoLS.

The Government has accepted the near-universal criticism of DoLS (and, no doubt, noted the colossal estimates of the funding levels required to implement DoLS properly at the post-Cheshire West scale required), and the Bill abolishes DoLS in its entirety, by deleting MCA 2005, Sch A1 and 1A. It adds instead a new Sch AA1 – which we anticipate will be known as the ‘liberty protection safeguards’ (LPS) (although the Bill does not use that title explicitly), as proposed by the Law Commission.
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Does it fix the faults of DoLS?

Some of the more obvious failings of DoLS are corrected in the new system, in particular:
  • where DoLS only applied to care homes and hospitals, leaving DoL in all other settings to need application to the Court of Protection for authorisation, LPS will apply in all settings, including the patient’s own home. This means that the burden of large-scale court applications should be lifted from local authorities and clinical commissioning groups (CCGs) which commission packages that may amount to a DoL in the community;
  • the current burden of annual renewals will be lightened, as authorisation of a DoL could now be for up to three years, after two initial periods each capped at 12 months.
  • the new scheme, like DoLS, was drafted only to apply over the age of 18 (the Law Commission had proposed reform should bring it into line with MCA 2005 itself, applying at age 16);
  • while those previously ineligible for DoLS as a result of use of MHA 2007 remain ineligible for the LPS, the interface with mental health legislation is not clarified at all, and the deep confusion over this issue is left in the long grass pending the outcome of a separate ongoing review of the MHA 2007;
  • there is still no statutory definition of DoL – so the Cheshire West Supreme Court judgment (and the very wide scope of people currently caught) prevails, for now at least;
  • the Court of Protection continues to have jurisdiction over any appeal against an authorisation of a DoL and, as long as non-means tested legal aid continues for such cases (which is not yet clear), they are expected to continue to increase rapidly.

What’s new?

To the extent that there is substantial change in the new process, it has not all been universally welcomed.

Although the Bill was presented on publication as saving £200m for local authorities, it is not clear how much of that cost, or more, is simply being shifted onto care homes and the NHS.

In place of the local authority, hospitals (both NHS and private sector) become responsible for authorising their own DoL cases for in-patients, and CCGs become responsible for authorising packages of care in the community which are NHS continuing healthcare funded. The local authority remains responsible for the residual cases.

Care homes, in particular, have a new and heavy burden in preparing the necessary assessments for residents. This will require significant resources, both in training and in delivery, the costs of which will surely ultimately be passed back to the paying public or the public purse.

A new, expanded definition of emergency circumstances in which a DoL can be authorised may be welcome in hospitals, obviating the need for the ‘urgent authorisations’ under the current system, although it may have been more helpful to legislate with some clarity whether such situations – especially in an acute medical context – amount to a DoL at all, as the case law has started to show (eg R (on the application of Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31, [2017] COPLR 172).

The basic requirements for a DoL to be authorised are only that, in addition to the patient/service user being of unsound mind and lacking capacity to consent to the arrangements, they are ‘necessary and proportionate’. There is no overt reference to them being in their best interests. (Although, if they were not in P’s best interests, they would not be lawful at all under the MCA 2005 – the lack of explicit reference to best interests as a criterion for authorisation of a DoL is disconcerting for some).

The DoLS system provided for independent scrutiny in every case by a role known as a best interests assessor before any authorisation was granted by the local authority. Now, in addition to the authorisation in many cases being granted to itself by the body detaining P, there will be independent scrutiny of the circumstances (by an approved mental capacity professional) only where ‘it is reasonable to believe that the person cared for does not wish to reside in that place…or to receive that care’ – ie effectively only in the case of ‘objection’ by the patient/service user. Objection can be difficult to define (and little attempt is made in the Bill – perhaps we will see more in a Code of Practice), and often identification of that trigger for independent scrutiny will also be in the hands of the body detaining P itself. Some are concerned that this will weaken the protection for a vulnerable group, simply spreading the limited available resources more thinly.

What next, and when?

It is important to remember that the Bill may be substantially changed on its way through Parliament. For example, in the early debates in the Lords there have already been amendments proposed that would reduce the age limit for LPS to 16, as the Law Commission proposed. It remains to be seen whether that amendment survives the Commons, as presumably the government had its reasons for rejecting that strong recommendation in the first place. We will all have to watch the progress of the Bill closely, as well as any code of practice that accompanies it.

On the timescales, we understand that it is anticipated that the Bill will be out of the Lords by the end of November 2018, and through the Commons early next year, with Royal Assent perhaps by April 2019. Allowing for implementation and training, we might expect it to come into force perhaps in late 2019, early 2020.

Practical implementation, and funding, will be key, and certainly the new responsibilities being imposed on care homes, CCGs and hospitals will need some thought, resources and training.

Interviewed by Susan Ghaiwal.

This analysis was originally published on LexisPSL Family (subscription required). Click here to request a free 1-week trial