Mental Capacity and Deprivation of Liberty - The Law Commission

Related Sector: Health & Social Care

The Law Commission published its final report on reform of the Deprivation of Liberty Safeguards, including a draft Bill, against a backdrop of the DoL Safeguards “in crisis”.

1. The Perfect Storm - the case for reform

In early 2014 the Government asked the Commission to review the DoL Safeguards. It followed what can only be described as a perfect storm.

• Firstly, came criticism from the House of Lords Select Committee that the Safeguards “were not fit for purpose” and that the law was “failing to deliver Article 5 safeguards to many people who lack capacity to consent to their care or treatment and are being deprived of their liberty”;

• Secondly, local authorities and hospitals were found to be failing to implement the Safeguards due mainly to the legal framework being overly complex and through a widespread lack of understanding across health ans social care. It was reported that the Safeguards were “frequently not used when they should be, leaving individuals without the safeguards Parliament intended” and care providers “vulnerable to legal challenge”; and

• Thirdly, the landmark judgment in “Cheshire West” which lowered the threshold and redefined deprivation of liberty, meaning tens of thousands more people fall within the scope of the safeguards.

2. The journey

The journey started over 12 years ago when the European Court of Human Rights in Strasbourg handed down the landmark judgment in HL v United Kingdom.

This judgment identified a gap in the law, known as the “Bournewood gap”, as a result of which a group of people who lacked capacity to consent to treatment were being deprived of liberty for the purpose of mental health treatment under the common law, rather than under the Mental Health Act.

The court held that this group were being denied the necessary procedural safeguards demanded by Article 5 of the European Convention on Human Rights
(“ECHR”).

The Deprivation of Liberty Safeguards (DoLS) were introduced through the Mental Health Act 2007 in order to close the gap, and introduced a scheme for the assessment and authorisation of such deprivations of liberty in hospitals and care homes.

The question has been asked for some time by commentators “Did the Safeguards adequately fill the gap?”

The answer would appear to be a resounding – no they did not.

3. The Law Commission’s Task

In 2014 The Law Commission were asked to review the current legal framework and to recommend any changes they thought would address these problems. I will attempt to summarise below.

The project has not only considered the interference with Article 5 of the European Convention on Human Rights but also Article 8, which in my opinion has always been the “nub” of the issue.

4. The Proposed New Scheme

The Law Commission has now published its final report and produced draft legislation introducing a new system to authorise deprivation of liberty in a care placement for people who lack capacity and are of unsound mind.

The proposed new scheme, Liberty Protection Safeguards (LPS), appears to focus on placing human rights protections and considerations around Article 8 and Article 5 right at the beginning of the care planning decision making process for commissioners, with the Law Commission aiming to give “greater prominence” to these which is good news indeed.

The LPS scheme also attempts to simplify compliance around a person’s Article 5 rights. The Law Commission stating:

“Article 5 rights must be practical and effective. It is not acceptable to continue with the current system where many people’s rights have become theoretical and illusory”.

The LPS attempts to introduce a scheme which is more inclusive, increasing the scope of people falling within it.

Firstly, it increases the scheme from people in placements in care homes and hospitals, to any setting which might give rise to a deprivation of liberty to take into account people in their own home, supported living or shared lives schemes, and secondly to include 16 and 17 year olds.

The DoL Safeguards only applied to over 18s. It also allows for the authorisation to cover more than one setting to manage planned admissions to hospital, respite and travel between venues.

5. A new two tier system

Under the existing DoL Safeguards everyone falling within the scope of the scheme was entitled to scrutiny by two independent assessors; a Best Interest Assessor and a Section 12 approved Doctor. Between the two assessors they are required to undertake 6 assessments. The most significant of those assessments, being the Best Interest Assessment.

The new LPS scheme introduces a two-tier system of protection and places the “responsible body”, the commissioner, as the “driver” of the process rather than the ultimate provider of care as was the case under the DoL Safeguards.   

For the majority of people, when a deprivation of liberty is identified, the responsible body will be required to undertake 3 assessments, in consultation with friends and family, before a person is deprived of their liberty.

The three assessments are:

• a capacity assessment,
• a medical assessment
• an assessment to check that the proposed care placement is “necessary and proportionate”.

It is proposed that all the assessments can be carried out by a variety of professionals.

Considering the Article 5 rights at the beginning of the process ensuring the Article 5 question arises before the person is placed is essential and will hopefully move away from the current system where Article 5 rights are thought about “after the event” and almost like a “rubber stamping” of a decision that has already been taken.

It is proposed that the first level of review in every case will be undertaken by an “independent reviewer”, who will be an employee of the “responsible body” but who must not be involved with the person’s care. If the reviewer considers if the conditions for the authorisation are met, and if they are, they can approve it.

In certain cases, where the person either objects to the care or treatment in the proposed setting where they are being deprived of their liberty, or the arrangement is wholly or mainly for protection of people other than those placed, or if the person initially does not object but subsequently objects, the case will be referred to a new “Approved Mental Capacity Professional” (AMCP).

The AMCP would be required to meet with the person and further scrutinise the assessments before determining whether to authorise the placement. This proposed role would basically replace the current BIA role.

The Law Commission’s Report states that:
 
“The Approved Mental Capacity Professional would be expected to consider matters using their own professional judgment rather than simply to consider whether those conducting the assessments could reasonably reach the conclusions that they did. The obligations upon them are therefore more onerous than upon the independent reviewer”.

There is a proposed right for cases to be kept under review and a flexible approach to when the cases can be reviewed placing responsibility both on the Independent Reviewer and the AMCP to consider review periods and the adequacy of reviews.

There is a proposed right to advocacy right at the beginning of the process on an “opt in” rather than “opt out” basis, but this will only be meaningful if the Government urgently review the provision of advocacy services. The Relevant Person’s Representative role is proposed to be axed, with a new statutory role introduced of a “appropriate person” an idea imported from the Care Act 2014 but with statutory underpinning.

There remains the provision of a right to challenge the deprivation of liberty to the Court of Protection with “gold plated” non-means, merit tested legal aid but with a suggestion that in cases which did not have the benefit of an AMCP initially could be referred to an AMCP for review as an alternative, but not with a pre-condition to a right to challenge.

On the plus side because of the widening of the scope of who falls within this new scheme this does even out the inequality of the availability of legal aid which previously hampered non DoL Safeguards cases before the Court. On the minus side this does not adequately address the fact that at present a great many section 21A challenges to the CoP, via the DoL Safeguards, end up with the court looking not only at capacity, but importantly best interests decisions, as well as the lawfulness of any intervention.

The Supreme Court heard the appeal in the case of MN in December 2016. The case concerned the interface between the Court of Protection and public law as to whether

“The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future and crucially whether or not…in the final analysis the Court of Protection cannot compel a public authority to agree to a care plan which the authority is unwilling to implement”.

The judgment has yet to be handed down and I, for one, will be interested to see if the outcome of this case will affect the Law Commission’s recommendations at all.

6. Wider Reforms across the Mental Capacity Act 2005

A much welcomed comment made by the Law Commission was around the recommendation to improve supported decision making by introducing a scheme to bolster Principle 2 of the MCA, and improving decision-making across the Mental Capacity Act, not just in cases involving deprivation of liberty.

This is music to my ears as I am often of the opinion that poor knowledge and implementation of the Mental Capacity Act 2005 is one of its greatest failings.

The MCA proposals would place a requirement on decision-makers to place greater weight on the person’s wishes and feelings when making decision under the act and confirm in writing that they had complied with the act. This follows current case law developments in the Court of Protection and is welcomed in light of the fantastic report prepared by Cardiff University on the Participation of P in Court of Protection Cases.

The proposals will also place a greater requirement on the decision maker, who requires the defence provided in section 5 of the Act, to “show their workings out” and record their justification of how the decision was taken.

Great news!

7. What happens next?

Essentially it is now up to the government to decide whether to take the commission’s recommendations forward, and to debate and agree any changes to the Bill.

Should the Bill be passed as an Act, there will be the transitional arrangements, and then the guidance on how to comply with the Act.

Until then the present system continues as it is, and I will continue to train Best Interest Assessors under the DoL Safeguards scheme to undertake their role.

Bond Solon’s training for BIAs has always focused on the human rights of the individual especially around autonomy and self-determination and the right to respect for family life, privacy, home and of course liberty, and looking at the duty of the professional to respect and uphold those rights from the very beginning of the care management process with the emphasis on:

• Supported decision making in line with the core principles of the MCA;
• Good quality evidence based mental capacity assessments in-line with case law;
• Robust adherence to the best interests checklist with focus not only on involving the person in the decision being taken about them upholding the edit “no decision about me without me”, but prioritising their wishes and feelings, values and beliefs and consulting properly before taking a decision;
• Good quality recording on how decisions are taken so professionals can provide an evidence base for their best interest decisions, which ultimately provides them with the section 5 defence.

Bond Solon trained BIAs will be ahead of the game with all the knowledge and skills required to influence the decision making at the beginning of the care management process in line with the proposed new legislation.

Should the Bill becomes law, our Bond Solon qualified BIAs will be in a perfect position to transition into the new role of the AMCP should they wish, and should they not wish to become an AMCP, they will be perfectly placed for the role of Independent Reviewer.

Sue Inker,
Bond Solon Subject Matter Expert and BIA Trainer