By Ben Troke and Rebecca Fitzpatrick
There is little dispute that the law on deprivation of liberty is in urgent need of reform, and the Law Commission reaffirms in its interim statement, published last week, that “legislative change is the only satisfactory solution”. The question is the scope, shape and pace of that change and whether the government will have the appetite and the funds to implement it.
The original Law Commission proposals – put out for consultation in July 2015 – could not be faulted for lack of ambition. They envisaged, broadly:-
- A “supportive care” scheme that would looked beyond those deprived of liberty under Article 5 of the European Convention on Human Rights and offer some scrutiny and due process to protect others not deprived whose rights to private and family life under Article 8 were at risk. This would avoid there being a such a steep gradient between the safeguards enjoyed by those within the protection of Article 5, and those who may fall just outside it.
- A “restrictive care and treatment” scheme, to include those deprived of liberty and in restrictive care arrangements, covering not only registered settings, like the current Deprivation of Liberty Safeguards (DoLS), but also the family home; with a key role for a beefed-up best interests assessor (BIA) – badged as an approved mental capacity professional (AMCP) – in authorising the deprivation.
- A separate scheme for hospitals/hospices with a different approach for those deprived of liberty as inpatients allowing doctors to authorise a deprivation for up to 28 days.
- Amendments to the Mental Health Act (MHA) to enable the admission to psychiatric hospitals of people who lacked capacity to consent, needed to be deprived of their liberty but were not objecting to their care and treatment.
- A first-tier tribunal system to hear reviews of the care and treatment of people under the restrictive care or hospital schemes, replacing this aspect of the Court of Protection’s jurisdiction.
Overall, the effect would be comprehensive, principled, and with greater emphasis on prevention of a deprivation of liberty arising; but also hugely expensive (the impact assessment put the costs of implementation at £1.8bn over 10 years) and, arguably, even more complex than the DoLS scheme it would replace. The government’s frosty initial response to the consultation saw it more in terms of the latter.
At the government’s request, the Law Commission has now published an “interim statement” setting out the proposed direction of travel now through to the final report and draft legislation, due to be published by the end of 2016.
The Law Commission reaffirms the “compelling case” for replacing DoLS and the scale of workloads and pressure on resources mean that “any notion that the existing system can be patched up to cope, even in the short term, in our view is not sustainable”.
However, those same financial and resource pressures in the current economic climate mean that many respondents saw the grand scale of the initial proposals as unrealistic, and simply too costly to implement at the moment. While the Law Commission pushes back a little on this (“we do not accept that safeguards should be restricted to the bare minimum or that we should not consider any reforms that may generate additional costs”) this concern has clearly driven their response, which accepts that reform must “demonstrably reduce the administrative burden”, and provide “maximum benefit for the minimum cost”.
As a result, the proposals will now be for:
- A “more straightforward, streamlined and flexible scheme” focused solely on authorising deprivation of liberty, and going no further, abandoning the aspirations of the wider “supportive care” scheme, though some amendments would be made to the Mental Capacity Act to protect Article 8 rights in a way that minimises demands on services. These would include adding emphasis on P’s wishes in best interests decisions, and testing the necessity for any removal of P from home into institutional care before any such move is made.
- The responsibility of establishing the case for a deprivation of liberty to be shifted from the provider of the care to commissioner (usually local authority, clinical commissioning group or health board), using where possible the same assessments already in place for the care planning.
- Rights to reviews, legal proceedings and advocacy.
- Consideration to be given to “a defined group of people” receiving additional independent oversight of the deprivation of liberty by an AMCP. However, it appears that not only is the central role of the AMCP as scrutinising and authorising the deprivation in every case lost (on the basis that the vast numbers affected by the Cheshire West judgement means it is “not proportionate or affordable” to offer this to everyone caught by Article 5), but even the current universal role of the BIA is dropped, so a proportion of those deprived will apparently have no independent oversight, which we anticipate may be controversial.
- A single scheme applied uniformly across every setting, ie dropping plans for the dedicated hospital / hospice scheme and, presumably, leaving it to the relevant CCG or health board to authorise all inpatient deprivations.
- No amendment to be made to the the Mental Health Act (MHA), on the basis that the policy aim can be met by provision that the existing powers under MHA should be used for patients who lack capacity to consent to admission and treatment for their mental disorder, even where they are compliant.
- An amendment to be made to the Coroners and Justice Act 2009 to explicitly remove the proposed scheme from the definition of “state detention”, which triggers the need for an inquest, in some cases with a jury. This would no doubt be very welcome.
- Further consideration to be given to the proposal for a tribunal to replace the Court of Protection jurisdiction in these cases, as a final decision on this has not been reached.
A new name
Finally, one of the most controversial aspects has been the terminology used, and we are all familiar with the counterproductive effect it can have to try to discuss “deprivation of liberty” in some of the sensitive and emotional situations in which health and social care are delivered. Apparently the favourite alternatives suggested were “liberty safeguards”, followed by “capacity safeguards”, and the Law Commission explicitly request further suggestions/feedback on this (to Olivia.Bird@lawcommission.gsi.gov.uk).
So much of the original scheme has been pared back that it is quite difficult to get a clear sense of exactly what is left, or how it would work.
Common sense or an opportunity missed?
Some will see this as common sense prevailing, with a scheme of much more limited scope, less complexity and, no doubt, commensurately reduced costs being proposed (though a revised impact assessment has not yet been provided). Others may see it as an opportunity missed to address the wider issues, and in particular the prevention of deprivation of liberty and aspects of Article 8 rights, potentially simply delaying the need for more comprehensive reform, and arguably diluting the independent scrutiny and safeguards provided.
Local authorities and CCGs/health boards are likely to have strong views about the fairly radical change towards the apparent imposition on them of the principal responsibility under the new scheme without, as yet, a lot of detail about how this would work.
The only certainty, probably, is that the eventual scheme, if anything does reach the statute books in some years’ time, is likely to look different again from this, just as it was never likely that the Law Commission’s initial proposals would ever make it into law exactly as drafted.
We await the final report and draft legislation (expected no sooner than December 2016) with great interest, and in the meantime remind readers again that the current framework, however imperfect, continues to govern deprivation of liberty cases and the issues must be tackled now as best we can with the tools we have.
Ben Troke and Rebecca Fitzpatrick are partners at law firm Browne Jacobson