Deprivation of liberty: First thoughts on the Law Commission’s reform proposals

Last week The Law Commission published its proposals to reform deprivation of liberty law, including a replacement for the Deprivation of Liberty Safeguards (Dols). Before making any comment on the proposals, it’s important to acknowledge how much easier it is to decry the current system than it is to come up with a reasonable, practical and coherent alternative.

That is especially so given the Law Commission’s acceptance of the Supreme Court definition of deprivation of liberty as the starting point. The implication is that any system for scrutiny and authorisation of deprivation of liberty will have to meet Article 5 of the European Convention of Human Rights (the right to liberty). It will also have to work at large scale, and across a whole range of settings. This includes acute hospitals, care homes and supported living, through to, in some cases, the private family home.

Wide ranging and ambitious reforms

At around 230 pages, the Law Commission’s consultation paper is a wide ranging and ambitious document. Its scope goes far beyond the narrow issues of Article 5 of the ECHR, and into rights to family life (Article 8). It also covers supported decision-making and care planning much more widely.

The intention, overall, is to create a system in which the authorisation of any deprivation of liberty is ‘mainstreamed’ and involves more independent scrutiny and advocacy as care becomes more restrictive. The proposed system sees safeguards as an integral part of the care planning process, rather than an academic, legalistic box ticking exercise after the event.

The approach put forward by the Law Commission is a tiered system, provisionally entitled ‘protective care’, with proportionate safeguards according to the extent of the restrictions involved in a person’s care. The process is also tailored to the particular care setting.

The apparent complexity of the proposed system will no doubt provoke much debate. However, the complexity is inevitable, to some extent, with any move towards a more nuanced approach and away from the ‘one size fits all’ of the Deprivation of Liberty Safeguards (Dols).

Questions raised by the proposals

Common themes throughout the Law Commission proposals – especially the focus on independent advocacy, supported decision-making and a greater weight on the person’s own wishes – raise a number of obvious questions. These include:

• Does the proposed change in supported decision-making really add anything to the existing empowerment principles of the Mental Capacity Act?
• Does the proposal for a statutory presumption, in effect, that the person’s wishes and beliefs should be determinative of any best interests decision wherever possible go too far? For example, does it risk injecting uncertainty and, arguably, fettering best interests decision-making generally and the discretion of the Court of Protection?
• Is there enough clarity to prevent confusion or duplication with other advocacy/support roles, such as those under the Care Act?
• Given the difficulty sometimes, in practice, securing appropriate advocacy involvement already, will there be enough resources available to make this meaningful?

Approved Mental Capacity Professionals

This issue of resources may be even more pressing given the emphasis the system proposed by the Law Commission places on a new role of the approved mental capacity professional (AMCP). The Law Commission envisages the AMCP as, in effect, a supercharged version of the current Best Interests Assessor (BIA) role. The AMCP would work across a much wider range of cases. This raises a number of questions, particularly given the current scarcity of BIAs:

How can we get enough AMCPs trained and available ?

• Will there be an appetite for the role?  It would involve much greater responsibility not only for driving the process of scrutiny, but also for authorisation of care plans, including those which are deprived of their liberty. There would also be responsibility for ongoing monitoring of the situation in settings from the family home through to acute hospitals.
• If AMCPs are employed by local authorities, will there be a perception of conflict of interest in their role in authorising restrictive care plans often being implemented by their employers?

Other issues

Some other questions that arise from the Law Commission proposals:

• There is little detail about the proposed tribunal system. How this would work and how much would it cost? This is especially important given the expectation that local authorities will bring a review automatically to a tribunal if not otherwise brought within a specified timescale. At the time of writing, the impact assessment usually published with any consultation has not been published.
• If deprivation of liberty issues go to a new tribunal, rather than to the Court of Protection, how will it be possible in practice to disentangle the deprivation of liberty from the wider welfare issues which must still be dealt with in the court?
• If, as the Law Commission say, one of the worst aspects of Dols is the managing authority being able to self authorise a deprivation of liberty for 7 to 14 days, then is this consistent with a new system allowing a doctor to authorise up to 28 days in a hospital, albeit with other safeguards including the appointment of a second doctor as the Responsible Clinician?  Equally, without the opportunity to grant itself anything equivalent to an Urgent Dols Authorisation, is it realistic to expect that care homes will always be able to secure the involvement of an AMCP in good time?
• To the extent that the essence of the Law Commission proposals are all about proper care planning, if this is not happening already, what reason is there to suppose that this will make it happen?
• A lot of emphasis is on local authorities. It is not clear what the position is for the tens of thousands of packages which would certainly meet the threshold for restrictive care and treatment which are commissioned by NHS clinical commissioning groups (CCGS), and what are the respective obligations of CCGs and local authorities in those cases?
• Despite the wider category of restrictive care and treatment, there would still be a need to identify a deprivation of liberty (as the threshold for intervention/scrutiny of a package in a family home and for requiring expert medical evidence of unsoundness of mind, for instance).  Would the Law Commission proposals make it any easier to do that?  If anything, does the terminology of ‘deprivation of liberty’ then sit a little oddly among the softer language of ‘protective and supportive care?’
• How will it be applied in practice in family home?

‘A once in a generation opportunity’

With the colossal strain on the current Dols system, and with the Court of Protection jurisdiction for deprivation of liberty in the community taking an ever more absurd turn on a regular basis, almost anything would be a significant improvement on the current position!

But with the timetable for the Law Commission project leading to draft legislation only by the end of 2016, and implementation unlikely before 2018 (even with prompt and full buy in from the government and support from the treasury) can any reforms happen quickly enough?

The Law Commission wants to know what you think, and you should tell them. This is a once in a generation opportunity to try to get this right.

Ben Troke is a partner at the law firm Browne Jacobson and head of its health and social care advisory team. Ben will be running a webinar on the Law Commission’s deprivation of liberty proposals on 15 July.