Bevan Brittan explores the impact on DoLS in the Mental Capacity Act Bill

Publish date: 23/07/2018

On 3 July 2018, a Bill to amend the Mental Capacity Act ("the Bill") was introduced into the House of Lords for a first reading. This is likely to have a significant impact on healthcare providers in the public and private sectors, as well as on commissioners in health and social care. The detail still has some way to go before it gets to the statute book, but Ruth Atkinson-Wilks looks at the overarching themes that are going to feature most prominently.


Background

The Bill is the culmination of a three year project by the Law Commission to review the Deprivation of Liberty Safeguards ("DOLS"), which were introduced in 2007 to create a framework for the protection of vulnerable persons lacking capacity to decide about care and treatment that may amount to a deprivation of liberty under Article 5 ECHR.

Despite having a simple aim, the DOLS framework is widely acknowledged as being overly confusing, expensive and bureaucratic.

In March 2017, the Law Commission published its final recommendations and earlier this year, the Government responded that the "current DOLS system should be replaced as a matter of pressing urgency."

The introduction of the Bill this month therefore marks the first step of the parliamentary process towards a replacement of the increasingly unworkable DOLS framework.

Key Points of the Bill

The DOLS framework will be replaced by a new administrative scheme known as the Liberty Protection Safeguards ("LPS").

Under the LPS, the 'responsible body' for authorising a deprivation of liberty depends upon where the cared-for person is residing. If the cared-for person is residing in a hospital, responsibility will fall to the hospital manager; if the cared-for person is in receipt of continuing healthcare, this will be the relevant Clinical Commissioning Group; in all other cases, this will be the Local Authority. This is a significant departure from the DOLS, where responsibility always fell to the Local Authority as the supervisory body.

Responsible bodies will be able to authorise any 'arrangements' which give rise to a deprivation of a person's liberty, if that person is over 18, and lacks capacity to consent to the arrangements, is of "unsound mind," and the arrangements are determined to be necessary and proportionate (referred to collectively as the conditions for authorisation).

Unlike the DOLS, authorisation of arrangements for cared-for persons will not be restricted to care homes and hospitals. Instead, arrangements amounting to a deprivation of liberty in any setting (including domestic settings) can be authorised under the LPS. Authorisations will also be flexible and therefore an authorisation may cover one or more settings (if for example, a person is being transferred between environments).

The LPS require the responsible body to consult with any relevant persons regarding the arrangements and to ensure that all reasonable steps have been taken to ensure the cared-for person has a representative either in the form of an Independent Mental Capacity Advocate ("IMCA") or an "appropriate person" or both.

Although care homes are not responsible bodies under the Bill, the LPS does prescribe a clear role for care home managers within the authorisation process if the cared-for person is residing in a care home. In particular, the care home manager will be required to provide the responsible body with a statement that the authorisation conditions are met and that consultation with relevant persons has taken place. Care home managers will also be responsible for notifying the responsible body that an IMCA should be appointed.

Before authorising arrangements amounting to a deprivation of liberty, the responsible body must appoint someone not involved in the cared-for person's daily care and treatment to undertake a pre-authorisation review of the arrangements unless there is reason to believe the cared-for person is objecting to the arrangements, in which case the review must be completed by an Approved Mental Capacity Professional. The purpose of the pre-authorisation review is to ensure that the conditions for authorisation have been met.

Once made, an authorisation can last for up to 12 months. Unlike DOLS which expires after 12 months, an authorisation under the LPS can be renewed for 12 months in the first instance and then for up to three years on subsequent renewals.

Seven Key Areas to Watch

The Bill is likely to be contentious as it does, in places, significantly depart from the recommendations of the Law Commission. Furthermore, the Joint Committee on Human Rights ("JCHR") recently provided its Report on the Law Commission's Proposals and this report raised other issues that will need to be considered by Parliament.

We have highlighted below seven key areas that are likely to feature heavily in the debate as the Bill travels through the legislative process.

1Definition of a Deprivation of Liberty

The Bill does not seek to provide a definition of deprivation of liberty. This issue was not addressed by the Law Commission, however, the JCHR has recently published its conclusions and recommendation of the LPS and has stated that "Parliament should set out a statutory definition of deprivation of liberty which clarifies the application of the Supreme Court's acid test and brings clarity to frontline professionals." The possibility of a statutory definition is therefore likely to be an issue for consideration as the Bill moves through Parliament.

216 – 17 year olds

The Law Commission's recommendations were that the LPS should be extended to apply to 16 and 17 year olds "to ensure that young people are provided with practical and effective rights." This was supported by a majority of the Law Commission's consultation responses, accepted by the Government in their formal response and also accepted by the JCHR. It is therefore surprising that the Bill maintains the position from the DOLS framework that the LPS will only apply to persons aged 18 and over (for an overview of the law regarding 16-17 year olds please click here). This is likely to be an important area of the debate.

3Unsound Mind

A key condition for an authorisation under the LPS is that the cared-for person is of "unsound mind." This differs from the mental health condition under DOLS, which required P to be suffering from a "mental disorder under the Mental Health Act 83". The inclusion of unsound mind is intended to bring the wording of the LPS in line with Article 5 which uses the term; however, there is much concern over this as it is vague, little understood and arguably more stigmatising. The JCHR has recommended that "further thought be given to replacing 'unsound mind' with a medically and legally appropriate term."

4MCA / MHA interface

The New Bill maintains the existing position regarding the MCA and MHA interface by simply moving Schedule A1 into the main body of the Act. This is despite widespread recognition of systemic problems with the existing interface and also against the Law Commission's recommendations which made specific recommendations for improvement. The Bill has also ignored the Law Commission's recommendation that consideration should be given to whether challenges to a deprivation of liberty should be heard by a First Tier Tribunal as opposed to the Court of Protection (a recommendation that was also supported by the JCHR). The lack of any action on these issues however may well be the result of the ongoing Mental Health Review which is due to report in autumn of this year.

5Care Homes

The Bill goes much further than the Law Commission Recommendations in terms of the responsibility that is placed upon Care homes. It will therefore be interesting to see how the Care Home Sector responds to the Bill.


6 Article 8 Considerations

The Law Commission's Recommendations made some attempt to include protection for a person's Article 8 rights (right to a family and private life) within the proposed amendments to the Mental Capacity Act by specifying a list of applicable decisions that require a written record of decision making (including any decision regarding covert medication and contact restrictions). The Bill makes no reference to this however (despite the Government accepting this part of the proposal in their response), focusing only on Article 5 rights. This is likely to be of great disappointment to many campaigners and stakeholders and therefore may become a pertinent issue in Parliament. In the meantime, the current law on Article 8 Authorisations and covert medication remains in place.

7Best Interests

The current DOLS framework requires a best interest assessor to determine whether a deprivation of liberty is in a person's best interests. The Bill, however, requires no consideration of best interests, only requiring that the arrangements are necessary and proportionate. Although this is partly is line with the Law Commission's proposals that the LPS should remove the focus on best interests to move away from substituted decision-making (in line with the Convention on the Rights of Persons with Disabilities), the Bill contains no explanation of what is meant by necessary and proportionate or how these should be assessed. It is expected that concern will be raised in Parliament regarding the removal of best interests from the LPS and the lack of guidance surrounding necessity and proportionality.

What Next?

The Bill was debated in the House of Lords at its Second Reading on 16 July 2018 and will now progress to the Committee and Report Stage for detailed consideration in September 2018. The amended Bill will then return to the House of Lords for a Third Reading before being progressed through the House of Commons in a similar fashion. Both Houses will then consider final amendments before the Bill receives Royal Assent and becomes an Act of Parliament. The whole process is likely to take between six months and a year.

Ruth Atkinson-Wilks

Solicitor

Bevan Brittan

0370 190 3099