Deprivation of Liberty Safeguards (DoLs) have been criticised for being overly complex and excessively bureaucratic.
The current system is to be replaced and the government has now developed a new system known as “Liberty Protection Safeguards” which will become law through the Bill.
The Mental Capacity Act 2005 came into force in October 2017 and provides a statutory framework for acting and making decisions on behalf of individuals who lack capacity to do so for themselves.
The Government added new provisions to the Act, the Deprivation of Liberty Safeguards, which aims to protect people who lack mental capacity and need to be deprived of their liberty so that they can be given care and treatment in a hospital or Care Home. This was in response to the R v Bournewood Community and Mental Health Trust when a man who was autistic and had profound learning disabilities had been unlawfully deprived of his liberty when admitted to a psychiatric hospital, in the meaning of Article 5 of the European Convention on Human Rights.
Following the ruling, the UK government launched a widespread consultation about the potential consequences of ‘the Bournwood judgement’ during which it was considered that compliant but incapacitated adults in care homes, as well as in hospitals, might be deprived of their liberty in the meaning of the Convention. The consultation resulted in the amendment of the Mental Capacity Act 2005 to contain the deprivation of Liberty Safeguards. The safeguards came into force in April 2009.
The purpose of DoLs is to ensure that there is an independent professional assessment of (a) whether the person concerned lacks capacity to make their own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it is in their best interests to be detained
Problems with Deprivation of Liberty Safeguards
In March 2014, a House of Lords Select Committee was set up to review the Mental Capacity Act and published a detailed report concluding that the DoLs were “not fit for purpose” and recommended that they be replaced. The committee said the system under which hospitals and care homes apply to local authorities or Welsh health boards to authorise deprivations, was over-bureaucratic and left many thousands of people unlawfully detained in care settings.
At the same time the Supreme Court effectively lowered the threshold for a deprivation of liberty in care because of the Cheshire West judgement. This judgement was much anticipated by those working in the field of Health and Social Care who felt that the previous law was confusing and led to fewer people being given protection of regular independent reviews.
The Cheshire West Judgement
P and Q (otherwise known as MIG and MEG) are sisters who became the subject of care proceedings in 2007 when they were respectively 16 and 15. Both have learning disabilities. MIG was placed with a foster mother to whom she was devoted and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters’ best interests and did not amount to a deprivation of liberty. This finding was upheld by the Court of Appeal.
P is an adult born with cerebral palsy and Down’s syndrome who requires 24 hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services authority obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the authority. Since November 2009 he has lived in a staffed bungalow with other residents near his home and has one to one support to enable him to leave the house frequently for activities and visits. Intervention is sometimes required when he exhibits challenging behaviour.
The judge held that these arrangements did deprive him of his liberty but that it was in P’s best interests for them to continue. The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P.
Following these decisions, the cases were taken to the Supreme Court which unanimously allowed the appeal of P, and by a majority of 4 to 3 allowed the appeal of MIG and MEG. All had been deprived of their liberty. People who lack the capacity to make their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty.
There has been an increased burden placed on local authorities and health and social care practitioners administrating DoLs. In 2015 – 2016 English councils received 195,840 DoL applications from care homes and hospitals, a 1400% increase on the number received in 2013 -14. As a result, councils are routinely breaching statutory timescales for completing DoLs assessments and deciding whether to authorise a deprivation of liberty in care homes or hospitals. In 2015 – 16, 42% of applications made had not been signed off by the end of the fiscal year.
Law Commission Proposals
The Law Commission review was the government’s central response to the Cheshire West Judgement and the House of Lords Select Committee review.
The Law Commission’s consultation paper was published on 7 July 2015. It contained provisional proposals for the reform of the law. During a four-month public consultation there were 83 events attended across England and Wales. It was one of the most extensive public consultation exercises undertaken by the Law Commission. They received 583 written responses.
In May 2016 they published an interim statement, summarising the key messages from consultation and setting out some of their initial conclusions.
A report was published on 13 March 2017 setting out the Law Commissions recommendations together with a draft Bill. The Law Commission recommended in their final report and draft Bill that the DoLs be repealed with pressing urgency and sets out a replacement scheme for the DoLs, Liberty Protection Safeguards. The Bill also makes wider reforms to the Mental Capacity Act which ensure greater safeguards for persons before they are deprived of their liberty.
The proposals would mean:
- Enhanced rights to advocacy and periodic checks on the care or treatment arrangements for those most in need.
- Greater prominence given to issues of the person’s human rights, and of whether a deprivation of their liberty is necessary and proportionate, at the stage at which arrangements are being devised.
- Extending protections to all care settings such as supported living and domestic settings – therefore removing the need for costly and impractical applications to the Court of Protection.
- Widening the scope to cover 16 and 17 year olds and planned moves between settings.
- Cutting unnecessary duplication by considering previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term conditions.
- Extending who is responsible for giving authorisations from councils to NHS if in hospital or NHS health care setting.
- A simplified version of the best interest’s assessment which emphasises that, in all cases, arrangements must be necessary and proportionate before they can be authorised.
Under the Liberty Protection Safeguards there would be a two-tier approach:
The Responsible Body (which replaces the supervisory body, and which would be the local authority in most social care cases and the NHS for most hospitals) would need to arrange a mental capacity assessment and medical assessment (making use of existing assessments where possible) and assess whether the proposed placement was necessary and proportionate. The person’s family and friends would need to be consulted and an independent reviewer, an employee of the responsible council not involved in the case, would need to check the case and could then approve the deprivation of liberty. But if there were concerns that the person’s confinement was against their wishes the case would need to be referred to an independent approved mental capacity practitioner (AMCP), who would need to meet with the person and scrutinise assessments carried out before deciding whether to authorise the deprivation or not. The AMCP would replace the current role of the Best Interests Assessor.
Response to Proposals
The Government published its interim response to the Law Commissions report on 30 October 2017 and its final response was published on 14 March 2018.
In its formal response to the Law Commission’s proposals the government accepted in principle 42 of the 47 recommendations, with only one rejected – the proposed statutory codification of the law in relation to mental capacity and children – and four others deferred for consideration as part of the separate Independent review of the Mental Health Act.
The Mental Capacity (Amendment) Bill had its first reading in the House of Lords 3 July 2018 and was published 4 July 2018.
Minister for Care Caroline Dinenage said:
“Treating people with respect and dignity, no matter their disability or condition, is the touchstone of a civilised society. I want to ensure that the system works for everyone and ensures that individuals’ fundamental rights are protected while reassuring families their loved ones are getting good care. We know local authorities are under pressure which is why these reforms are so important: to reduce the burden on councils so they can focus their resources where they are needed on the frontline.”
Members of the Lords, including a vice-president of the Alzheimer’s Society and the former chair of the Values-based Child and Adolescent Mental Health System Commission, discussed the key principles and purpose of the Mental Capacity (Amendment) Bill during second reading, on Monday 16 July 2018.