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Legislation to replace Deprivation of Liberty Safeguards introduced

Government introduces Mental Capacity (Amendment) Bill to the House of Lords, seeking to replace the ‘Deprivation of Liberty Safeguards'.

Executive summary

The Government has introduced the Mental Capacity (Amendment) Bill to the House of Lords as it seeks to replace the ‘Deprivation of Liberty Safeguards’ (DoLS). The Bill contains a new system based mainly on proposals from the Law Commission and known as ‘Liberty Protection Safeguards’ (LPS).

In detail

Hot on the heels of the Joint Committee on Human Rights’ report on the Law Commission proposals to reform the DoLS (read our update for more information) the Government, to the surprise of everybody, introduced the Bill (view full details about the Bill's planned legislative passage, including the full text of the Bill) to the House of Lords on 3 July 2018. According to the Government the reforms will:

  • Introduce a simpler process that involves families more and gives swifter access to assessments
  • Be less burdensome on people, carers, families and local authorities
  • Allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process
  • Consider restrictions of people’s liberties as part of their overall care package
  • Get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment.

The Bill differs from the draft which was included in the Law Commission’s report, from March 2017 (read our previous update). In particular, all the wider elements of the draft Bill have been removed, along with elements such as the codification of the concept of ‘advance consent.’ The Government Bill instead focusses on a variant of the Law Commission’s LPS. The Explanatory Notes don’t explain why this is; the Impact Assessment notes that “the Law Commission also proposed making some wider amendments to the Mental Capacity Act which we have decided not to legislate for at this point, as we think there are other effective levers to deliver improvement in these areas.”  This may be explored in more detail during the Bill’s second reading.

Main components of the Bill

Definition of deprivation of liberty

There is no statutory definition of deprivation of liberty, so the definition remains that contained in Article 5 of the European Convention on Human Rights, as interpreted by the Supreme Court in Cheshire West.

Interim/emergency deprivation of liberty

Section 4B of the Mental Capacity Act will be amended to provide express authority for a person to take steps to deprive another person of their liberty if four conditions are met. Broadly speaking, section 4B gives authority to take steps to deprive a person of their liberty in three circumstances:

  1. Where a decision relevant to whether there is authority to deprive the person of liberty is being sought from the Court of Protection;
  2. Where steps are being taken (either by a responsible body or a care home manager) to obtain authorisation under Schedule AA1 (replacing the concept of urgent authorisations under DOLS); or
  3. In an emergency, that is to solve the problems on deprivation of liberty in the hospital setting.

New Schedule AA1

This will replace DOLS with a new scheme which will be called LPS, although this name is not on the face of the Bill. Schedule AA1 provides for the new administrative scheme for the authorisation of arrangements enabling care or treatment of a person who lacks capacity to consent to the arrangements, which give rise to a deprivation of that person’s liberty. In a change to the Law Commission’s proposals, the LPS will only apply to those aged 18 and above. Under Schedule AA1, a responsible body can authorise arrangements giving rise to a deprivation of a person’s liberty in any setting (or in more than one setting). The responsible body will be the “hospital manager” where the arrangements are carried out mainly in a hospital; a CCG or Local Health Board in the case of arrangements carried out through NHS continuing health care (but not mainly in a hospital); a local authority in all other cases, including where care is arranged by the local authority, and where care is provided to people paying for their own care.

Before a responsible body can authorise the arrangements, it must be satisfied that three authorisation conditions are met:

  1. The person who is the subject of the arrangements lacks the capacity to consent to the arrangements;
  2. The person is of unsound mind; and
  3. The arrangements are necessary and proportionate. In a change to the Law Commission’s proposals, there is no reference to the necessity and proportionality being judged either by reference to the risk of harm to the person themselves or by the risk of harm to others.

Another change to the Law Commission proposals is that the Bill does not on its face provide that at least two people have to carry out the assessments, so it seems that all three could be carried out by a person with the suitable experience and knowledge. The responsible body (or the care home – for more on this, see below) must also carry out consultation with the person (this is assumed, as it is not express on the face of the Bill) and a range of others, particularly to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements. A person not involved in the day-to-day care of, or in providing any treatment to, the person must also carry out a pre-authorisation review (essentially the same as the Law Commission’s ‘independent review’) to determine whether it is reasonable for the responsible body to conclude that the authorisation conditions are met. In cases where the person is objecting to the proposed arrangements, an Approved Mental Capacity Professional (AMCP) must carry out the pre-authorisation review. In that case, the AMCP determines whether the authorisation conditions are met.

Care homes

A significant change to the Law Commission proposals is what happens where arrangements are wholly or partly carried out in a care home. The general effect of paragraph 13 of Schedule AA1 is that the care home manager must arrange the relevant assessments and take the other necessary steps before an authorisation can be given by the responsible body. Once an authorisation has been given, a number of safeguards are put in place including regular reviews of the authorisation by the responsible body or care home, and the right to challenge the authorisation before the Court of Protection (under a new s.21ZA).

From the outset of the process of authorisation under the Schedule to the point when the authorisation comes to an end, the person is to be represented and supported either by an “appropriate person” or an independent mental capacity advocate (IMCA). If the person has capacity to consent to being represented by an IMCA, the person must make a request, or where they lack the capacity to consent, the responsible body must be satisfied that being represented and supported by an IMCA would be in the person’s best interests.  An IMCA must be appointed unless there is an appropriate person who would be suitable to represent and support the person, consents to being appointed and is not engaged in providing care or treatment to the person in a professional role. There are also circumstances in which the appropriate person must themselves be provided with an IMCA. Authorisations can be varied where (for instance) the responsible body changes because the location of the arrangements change. They can also be renewed, initially for one year, then for periods of up to three years.

The LPS and the Mental Health Act 1983

Differing again from the Law Commission’s draft, which would have largely excluded the use of the LPS in a mental health setting, Part 7 of Schedule AA1 sets out the interface between the LPS and the Mental Health Act 1983 (MHA). The present position is generally maintained with the effect that patients detained under the MHA or who are objecting to being in hospital for mental health treatment (or to that treatment), cannot be made subject to an authorisation under Schedule AA1. In the community however, a person could be subject to an authorisation under Schedule AA1 and subject to MHA requirements, provided the authorisation does not conflict with those requirements.

One final difference to the Law Commission’s draft Bill is that this Bill does not introduce a tort of deprivation of liberty actionable against a private care provider. In light of the continued distinction between false imprisonment and deprivation of liberty identified by the Court of Appeal in R (on the application of Jollah) v Secretary of State for the Home Department [2018] EWCA Civ 1260, it seems that it will remain the case that a self-funder who does not meet the (tighter) test for false imprisonment would have no direct recourse against the care provider where steps are not taken to ensure that arrangements are authorised.

What happens next?

The Bill will have its second reading in the House of Lords on 16 July. It is unlikely that Royal Assent will be granted before early next year, and, given that a transition period will be required before the DoLS can be replaced by the LPS, it seems likely that the amended Act would not be fully in force until 2020 at the earliest. We will be following the Bill’s parliamentary progress closely and will report further.

If you have any questions or would like to know more about our update, please get in touch with your usual Weightmans contact, or Morris Hill (Associate).

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