Mental capacity: winners and losers

Most lawyers, even those working in sectors far removed from health and social care or the Court of Protection, will be familiar with elements of the debate and disillusionment surrounding the existing legal framework for the care and treatment of individuals who lack capacity to consent, and who are cared for in circumstances which deprive them of their liberty. 

The Deprivation of Liberty Safeguards (DoLS) – the bespoke authorisation process for people deprived of their liberty in care homes and hospitals – were described by the House of Lords Select Committee on the Mental Capacity Act 2005 (MCA) as ‘frequently not used… leaving individuals without the safeguards parliament intended’ and ultimately ‘not fit for purpose’.

Mr Justice Mostyn later described the underpinning legislation as ‘a veritable smorgasbord of double negatives and subordinate clauses, requiring a navigational exercise from provision to provision, which is an arduous task even for someone who administers justice in this field on a regular basis’.

The Law Commission was tasked with undertaking a complete review of the relevant legislation and to design a scheme which is understandable, straightforward to administer, and provides meaningful benefit for the individual concerned, while not overburdening providers and statutory authorities with unnecessary bureaucracy and expense.

Following a lengthy consultation, the final report and draft bill were published last week.

Does it deliver?

The report sets out 47 recommendations that cover not only deprivation of liberty, but also reforms to improve MCA decision-making more widely. The report and draft bill are likely to receive a mixed reception from the health and local authorities, and care providers. However, key proposed measures should ensure that the person at the centre – possibly facing removal from their own home into a care home – is placed at the heart of decision-making.

The draft bill replaces DoLS in their entirety.

The new scheme for authorising the deprivation of liberty has a new name: the Liberty Protection Safeguards (LPS). Just as the Mental Incapacity Bill, first laid before parliament in 2003, was wisely renamed, this affirming title may go some way to address the common misconception that these provisions are somehow punitive or stigmatising.

LPS offers a simplified process, retaining some of the more useful features of DoLS, but happily dispensing with inefficient and unhelpful aspects. 

Individual at the centre

All proposed changes are drafted in line with existing legislative safeguards and international conventions, specifically articles 5 (right to liberty) and 8 (right to a private and family life) of the European Convention on Human Rights (ECHR), and the UN Convention on the Rights of Persons with Disabilities. With the UK human rights legislation set for review and even our long-term commitment to the ECHR in doubt, this seems optimistic, and yet entirely appropriate.

The headlines

LPS will authorise particular arrangements which give rise to a deprivation of liberty (whereas DoLS simply authorised the deprivation of liberty). The arrangements must be specific, not vague, and will not extend to other decisions that local authorities have occasionally tagged on to DoLS, such as restrictions on contact with family or friends. LPS do not authorise the actual care and treatment delivered, but rather section 5 of the MCA is amended to address this in more detail.

Arrangements must be authorised in advance of being implemented, unless the person’s situation is genuinely urgent. This will ensure that the process cannot be reduced to an ‘after-the-event’ rubber-stamping exercise, resulting in a failure to properly explore the full range of options for the person – while they remain options.

There is a requirement that the measure is necessary and proportionate.

Four key expanded safeguards are included: provision relating to reviews; independent advocacy; the right of legal challenge; and monitoring and reporting requirements.

Interestingly, proposed amendments to section 4 of the MCA impose on best interests decision-makers an active duty to ascertain and give particular weight to the wishes and feelings of the individual, together with greater emphasis on consultation with family. If there is evidence that a person objects to the arrangements, additional safeguards include the involvement of a new professional: the approved mental capacity professional.

LPS apply across all settings: care homes, hospitals, supported living, shared lives, respite, children’s homes, domestic and private arrangements, and potentially community provision such as day centres. LPS can cover transport to or between places, and arrangements carried out in more than one setting. They apply to anyone aged 16 or over.

Additional measures include the ability for anyone 16 or over to give ‘advance consent’ to arrangements, while they have capacity and also address the ‘problem’ of fluctuating capacity.

Who is responsible?

It will no longer be care homes that routinely identify a deprivation of liberty and apply for authorisation – the local authority or NHS body (the ‘responsible body’) becomes responsible for the entire process, where it has commissioned or set up the arrangements. This significantly reduces the administrative burdens currently falling on care home managers. Further, it will now be the responsible body which notifies the regulator if a deprivation of liberty is authorised.

Local authorities may not welcome this provision with open arms, but at least they will share the burden with health authorities. Under existing legislation, the local authority carries responsibility, whether authorisation is sought by a care home or a hospital. In contrast, the bill introduces a hierarchy, whereby the responsible body is the hospital manager or Clinical Commissioning Group or local health board where arrangements will primarily be within a hospital, or if NHS continuing healthcare is provided. In all other circumstances, responsibility lies with the local authority.

However, if care arrangements have not been commissioned or arranged by a local authority or NHS body – as in the case of self-funders in care homes – it will still fall to the provider to apply to the responsible body for authorisation. Care providers will be concerned at the inclusion of a new civil claim for damages, should they put arrangements in place which are not authorised which give rise to a deprivation of liberty, although the draft bill includes a number of ‘defences’ to such a claim.

Rights of challenge

The consultation initially proposed a right of appeal to the First-tier Tribunal, rather than the Court of Protection, citing benefits of accessibility, panel expertise, cost efficiencies and improved opportunities for the individual to participate. Strong opposition from the court stakeholders and practical considerations have effectively kicked this into the long grass, with a recommendation that the choice of judicial body is considered in tandem with the ongoing ‘Transforming our justice system’ programme. 

What next?

It is now over to government. Who knows how much of the draft bill will eventually be enacted or when. Debate will follow on the extent to which the provisions might remedy the deprivation of liberty logjams and spiralling costs within local authorities or pressure at the Court of Protection. Meanwhile, it remains ‘business as usual’ for those at the coal face as far as deprivation of liberty is concerned.

Sheree Green is Court of Protection lead at Anthony Collins Solicitors and chair of the Law Society Mental Health and Disability Committee