Mental capacity and deprivation of liberty

The Deprivation of Liberty Safeguards (DoLS) aim to ensure that people who lack capacity to decide where to live and are deprived of their liberty receive the appropriate safeguards. However, since their inception they have been subject to heavy criticism. The House of Lords Select Committee on the Mental Capacity Act concluded the DoLS are ‘not fit for purpose’. In addition, following the Cheshire West Supreme Court decision in 2014, the definition of deprivation of liberty was significantly widened. Consequently, health and social care services have struggled to cope; DoLS referrals have increased 14-fold, leaving an increasing number unassessed and statutory timescales routinely breached.

In 2014 the Department of Health asked the Law Commission to review the DoLS. On 13 March 2017, the Law Commission published its final report and draft bill. The report recommends the DoLS be repealed as a matter of pressing urgency and proposes a new scheme, entitled the ‘Liberty Protection Safeguards’ (LPS). The report also recommends wider amendments to the Mental Capacity Act. This article provides an overview of the report’s key recommendations.

Liberty Protection Safeguards

The LPS create a more streamlined approach to authorising deprivations of liberty, which would lessen the administrative burden and prevent the subsequent routine lack of safeguards associated with the DoLS.

The new scheme is wider in scope than the DoLS, applying to people aged 16 and above and across all settings. It can authorise particular arrangements which amount to a deprivation of liberty, including in multiple settings (for example, a care home resident who also requires routine hospital admissions) and arrangements for transport.

The arrangements must be authorised by the ‘responsible body’ (which in general is the body responsible for commissioning the person’s care or treatment). Distinct from the DoLS, this would include the NHS if the arrangements are primarily carried out in a hospital or via NHS continuing healthcare. In all other cases – including self-funders – the responsible body is the local authority.

To authorise arrangements, the responsible body must arrange three assessments – a capacity, medical, and necessary and proportionate (having regard to harm to the person or others) assessment – and undertake the required consultation. These assessments must be completed by a minimum of two assessors, who must be independent of each other.

The scheme allows for greater use of equivalent and previous assessments. It also makes provision for fluctuating capacity; an authorisation will not necessarily cease in such cases as long as any periods of capacity are short-lived.

Most assessments must be signed off by an independent reviewer. But where a person is objecting to the arrangements or where the arrangements are necessary and proportionate to prevent harm to others, an approved mental capacity professional will be appointed to provide additional scrutiny (including meeting with the person).

The responsible body must record and keep details of the arrangements in an authorisation record. An authorisation would provide a defence against liability in relation to acts done for the purposes of the authorisation. Arrangements may be authorised for a maximum of 12 months (renewable for up to 12 months and then for periods of up to three years).

All authorisations entitle the person to key safeguards, such as reviews, advocacy, and rights to challenge the authorisation in a court. The right to advocacy would apply provided that there is not an appropriate representative to support the person. Advocacy is appointed on an opt-out basis, as opposed to an opt-in basis under the DoLS.

The report also recommends allowing persons to consent in advance to deprivations of liberty (which would mean that the LPS would not be needed) and creates a new tort of unlawful deprivation of liberty actionable against private care providers.

Wider reforms

The draft bill’s wider reforms to the Mental Capacity Act are intended to provide article 8 rights and improve decision making under the Act – regardless of whether a person is being deprived of their liberty. The key reforms in this respect are:

• Amending the section 4 best interests checklist to place greater weight on the person’s ascertainable wishes and feelings.

• Restricting the section 5 statutory defence so that for certain decisions (such as moving a person into long-term accommodation or restricting contact with others) it is not available to professionals unless a written record has been prepared, which confirms a number of matters, including that a formal capacity assessment has been undertaken and rights to advocacy have been given effect.

• Giving the government regulation-making powers to establish a supported decision-making scheme.

There are enormous pressures on health and social care at the moment. Our reforms will help to ensure that everyone is given the protections they need, and deliver a saving to the public sector and the taxpayer. This is alongside the new protections, such as enhanced rights to advocacy and periodic checks on the care or treatment arrangements.

The report has been laid in parliament and presented to the government. It is now up to the government to decide whether to take the recommendations forward. Our report and draft bill can be viewed at www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/.

Olivia Bird is a research assistant at the Law Commission and worked on the Mental Capacity and Deprivation of Liberty project

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