by Tim Spencer-Lane, lawyer at the Law Commission
This week the Law Commission published its consultation paper on deprivation of liberty, including proposals for a comprehensive scheme to replace the Deprivation of Liberty safeguards (Dols).
The Dols have been subject to considerable criticism since their introduction six years ago. In March 2014 two events inflicted significant damage. First, the House of Lords post-legislative scrutiny committee on the Mental Capacity Act published a report which, among other matters, concluded that the Dols were not “fit for purpose” and proposed their replacement.
A few days later, a Supreme Court judgment, which has since become known informally as the ‘Cheshire West ruling’, widened the definition of deprivation of liberty to a considerable extent. The practical implications have been significant for the public image of the Dols, and the regime has struggled to cope with a tenfold increase in the number of cases.
A compelling case to replace the Dols
We consider that there is a compelling case for replacing the Dols. Firstly, the Dols are perceived to be overly technical and legalised. They are not meaningful for disabled people and their families or carers. They also fail to secure buy-in from health and social care practitioners.Perhaps the most important consequence is likely to be that the rights of people who are deprived of liberty and those supporting them are difficult to discern.
In designing a new system we have identified a number of key principles, namely that the new scheme should be:
- aimed at delivering improved outcomes for people with health and care needs, and their families and carers
- rooted in the Mental Capacity Act
- straightforward and non-elaborate
- compliant with the European Convention on Human Rights,
- supportive of the UN Disability Convention, and
- tailored according to setting
Perhaps the most frequent and consistent criticism made to us about the Dols has concerned the terminology the scheme uses. In particular, the term “Deprivation of Liberty Safeguards” is viewed widely as unhelpful and it is suggested puts professionals off using the scheme. We have called our proposed new scheme “protective care”.
Our general approach to protective care
The new scheme of protective care will apply to hospital, care home, supported living, shared lives and domestic accommodation. However, the nature of the safeguards will vary according to the particular setting.
People who lack capacity and are living in care homes, supported living and shared lives accommodation will be provided with a set of safeguards (called “supportive care”). These are intended to ensure that prevention measures are in place and existing legal rights are being given effect to.
There will also be additional safeguards (which we have called the “restrictive care and treatment” scheme) which would apply if a person in such settings requires more restrictive or intrusive forms of care or treatment. This will include individuals deprived of liberty, but also some whose arrangements fall short of this.
A separate scheme would apply to hospital settings and palliative care where, in contrast to long-term care, admissions ordinarily involve shorter stays and an assumption that the person will return home as soon as possible. This is a more streamlined scheme and based around the concept of deprivation of liberty.
Protective care would not be capable of being used to authorise the detention in hospital of incapacitated people who require treatment for a mental disorder. Instead, the Mental Health Act would be amended to establish a formal process and safeguards for such people.
Finally, the new scheme would allow for the authorisation of a deprivation of liberty of a person living in family or other domestic settings. This would be an administrative form of authorisation, and it would no longer be necessary to seek court authorisation in all such cases.
Supportive care offers a protective outer layer for the scheme. It consists of prevention measures, but also recognises the importance of minimising regulatory burdens and resource implications. Therefore, the focus is on reinforcing existing support mechanisms, more than creating new legal machinery.
The safeguards would apply to people living in, or moving into, care home, supported living or shared lives accommodation, and who may lack capacity to consent to their living arrangements. In such cases, the local authority would be required to arrange an assessment regarding the person’s capacity to decide where they should be accommodated, or ensure that an appropriate assessment has taken place.
There would be no requirement for an “independent assessment” in the Dols sense. The assessment could be undertaken by anyone that the local authority thinks is appropriate, including social workers or nurses already working with the person.
In the vast majority of cases (where a local authority or the NHS is involved in the person’s care) this assessment should have already taken place when the person was admitted to the accommodation or where they lose capacity while in situ. For example the assessment might have been carried out under the Care Act 2014 in England or the National Health Service and Community Care Act 1990 in Wales. So it should be just a matter of making sure these considerations form part of the existing assessment.
People who fall within the supportive care part of our new scheme will benefit from a number of safeguards, including the appointment of an independent advocate or an “appropriate person”.
Among other matters, advocates and appropriate persons would be tasked with ensuring that the person has access to the relevant review or appeals process (for example the appeals mechanism under the Care Act, the social care complaints system in Wales, or the Court of Protection under the Mental Capacity Act). Supportive care would also require local authorities to:
- keep under review the person’s health and care arrangements and whether a referral to the “restrictive care and treatment” scheme is needed; and
- ensure that the person’s care plan includes a record of capacity and best interests assessments, sets out any restrictions being placed on the person, and confirms the legal arrangements under which the accommodation is being provided.
In most cases, assessments and ongoing reviews will already be happening, for instance through the Care Act in England, the community care process in Wales, and the requirements of best interests decision-making under the Mental Capacity Act. In such cases it would simply be a matter of the local authority linking with existing reviews to discharge this responsibility.
Restrictive care and treatment
The restrictive care and treatment scheme provides the direct replacement for the Dols. But, importantly, it is not organised around deprivation of liberty. Instead it looks at whether care and treatment arrangements are becoming sufficiently intrusive or restrictive to justify enhanced formal safeguards. This will include those deprived of liberty, but will also include some whose arrangements fall short of this.
A person would be eligible if:
- they are moving into, or living in, care home, supported living or shared lives accommodation;
- some form of “restrictive care or treatment” is being proposed; and
- the person lacks capacity to consent to the provision of the “restrictive care or treatment”.
The meaning of restrictive care and treatment would be determined by reference to an illustrative list. The list would include care and treatment where the person is subject to continuous supervision and control or is not free to leave. It would also cover instances where the person either is not allowed, unaccompanied, to leave the premises, or is unable, by reason of physical impairment, to leave those premises unassisted. It also refers to cases where barriers are being used, the person’s actions are controlled, the person objects, or significant restrictions are being placed on diet, clothing or contact.
The restrictive care and treatment scheme would be based around a revised role for the Best Interests Assessor (known as the “Approved Mental Capacity Professional” (AMCP) under our proposals).
The local authority would be required to refer cases to an AMCP. The AMCP would be required either to undertake an assessment themselves or to arrange for such an assessment to be undertaken by a person already involved in the person’s care (for example, their social worker or nurse). AMCPs would be in the same position legally as Approved Mental Health Professionals (AMHPs). In other words, they will be acting as independent decision-makers on behalf of the local authority.
If the person met the criteria, an Approved Mental Capacity Professional would be required to ensure that:
- the decision-making processes and care arrangements continue to comply with the Care Act, Mental Capacity Act and continuing health care regulations;
- regular review meetings take place (involving the family); and
- an advocate or appropriate person, and representative have been appointed.
There would be no parallel processes or documentation as everything would be contained within the overall Care Act, Mental Capacity Act or NHS continuing health care processes. The AMCP would have the power to include conditions and make recommendations regarding the care plan.
Right to Appeal
Within this scheme there would be a right for the person (as well as the AMCP, family members, advocates and appropriate persons) to seek reviews of the care plan and apply to the First-tier Tribunal. There would be a right to appeal the decisions of the tribunal to the Upper Tribunal or the Court of Protection.
Deprivations of liberty
Restrictive care and treatment would include the deprivation of liberty of a person who lacks capacity in their best interests. Any such deprivation of liberty should first be authorised expressly by the care plan. The AMCP would need to confirm that objective medical evidence had been secured. The care plan would therefore become sufficient authority for the care provider named in the plan to deprive the person of liberty if necessary, in accordance with the terms of the plan.
The duration of the authority would be set by the review date (with a limit of 12 months) and there would be a right of appeal to the tribunal. The scheme could authorise a deprivation of liberty in family and other domestic settings, as well as those living in care home, supported living or shared lives accommodation.
A separate scheme would apply to authorise deprivation of liberty in hospital and palliative care settings. Under it, we propose that a person may be deprived of liberty for up to 28 days in a hospital setting based on the report of a doctor. A responsible clinician must be appointed for any such patient, as well as an advocate and appropriate person. Further authorisations for a deprivation of liberty would require the agreement of an AMCP. The person and anyone else on their behalf may apply to the judicial body for review of the decision to deprive the person of liberty.
Mental health care and treatment
There would be a new mechanism under the Mental Health Act to enable the admission to hospital of people who lack capacity and who are not objecting to their care and treatment. The safeguards provided would include an independent advocate, a requirement for a second medical opinion for certain treatments and rights to appeal to the mental health tribunal. The Mental Capacity Act (and our new scheme) could not be used to authorise the hospital admission of incapacitated people who require treatment for mental disorder.
Our consultation paper contains over 100 provisional proposals and consultation questions. Some (but not all) have been outlined in this article. It is important to emphasise that these represent our initial view about how the law should be reformed and we will be reviewing these proposals on the basis of the responses to this consultation paper.
We will be undertaking a wide consultation process in order to gather as many different views and as much information as possible. We welcome responses from all interested parties, including Community Care readers. Details of how to respond can be found on the inside front page of the consultation paper.
The next stage will be to produce and submit a report by the end of 2016 to the Lord Chancellor. Taking into account the responses we receive to this consultation paper, the report will contain our final recommendations and the reasons for them. A draft bill, giving effect to our final recommendations, will also be included.