Planned reforms to the law on deprivation of liberty will take account of proposals to overhaul the Mental Health Act, the care minister has said.
Any changes arising from the Law Commission’s review of the law on deprivation of liberty, and proposed replacement, “will be undertaken in consideration of our work reforming mental health”, said Jackie Doyle-Price in a ministerial statement today.
The government has commissioned an independent review of the Mental Health Act, due to report next autumn, which may lead to replacement legislation.
Doyle-Price said the government would respond in detail to the Law Commission’s recommendations in next spring. Today’s interim statement provided no detail on what that response would consist of.
In July, Community Care reported that the government had put on hold any wholesale replacement for the Deprivation of Liberty Safeguards, as proposed by the Law Commission, until 2019, because of the legislative pressures created by Brexit. This has not been confirmed as yet.
Instead, it would make short-term changes to existing regulations to ease pressures on the system: in 2015-16, English councils received 195,840 DoLS applications from care homes and hospitals, a 1400% increase on the number received in 2013-14. This rise was the result of the March 2014 Cheshire West judgment, in which the Supreme Court effectively lowered the threshold for a deprivation of liberty in care.
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 financial year.
Liberty Protection Safeguards
The Law Commission’s proposals were designed to tackle the pressures arising from Cheshire West and also to address fundamental criticisms made of the design and implementation of DoLS by a House of Lords committee review, which reported a week before the Cheshire West.
The commission’s proposed replacement for DoLS, the Liberty Protection Safeguards (LPS), would apply to any setting that might give rise to a deprivation of liberty, including shared lives schemes and supported living, not just care homes and hospitals. It would also cover 16 and 17-year-olds, whereas the DoLS only applies to over-18s
But while the current system applies the same approach to all cases where a person may be deprived of their liberty, there would be a two-tier approach under the LPS.
In all cases involving a social care placement, the relevant local authority would need to arrange a mental capacity and medical assessment 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.
The independent person 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 professional, termed an 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 best interests assessor.
In her ministerial statement, Doyle Price said: “We are carefully considering your report and plan to engage with stakeholders to understand in greater detail how these changes can be implemented. We will also consider what enabling actions need to be taken to support the Mental Capacity Act ethos of greater empowerment and care centred around people, their wishes and aspirations. We particularly want to hear from people, carers and families of those who have been deprived of their liberty and have first-hand experience of how the system works for them.”
She said that any new system “must improve the quality of care for people, improve access to safeguards and be cost-effective”.