Story updated 4 July 16:40
The government has introduced a bill to overhaul the law on deprivation of liberty in a bid to tackle the huge demand on the current system and save local authorities an estimated £200m a year.
The Mental Capacity (Amendment) Bill had its first reading in the House of Lords yesterday (3 July) and was published today (4 July). It will replace the Deprivation of Liberty Safeguards with a scheme called the Liberty Protection Safeguards, based on proposals issued by the Law Commission last year.
The government has estimated that the reform will save local authorities £200m a year, including by permitting the NHS to authorise deprivations of liberty in its settings and by ensuring that restrictions on people’s care or living arrangements are considered as part of their wider care planning, rather than as a separate process.
“We know local authorities are under pressure which is why these reforms are so important: to reduce the burden on councils so they can focus their resources where they are needed on the frontline,” said minister for care Caroline Dinenage.
Cheshire West impact
The Supreme Court’s Cheshire West judgment in March 2014 effectively lowered the threshold for what constituted a deprivation of liberty in care. This meant that that many more care home residents or hospital patients who lacked capacity to consent to restrictive care and living arrangements fell under the DoLS, with applications soaring from 13,000 in 2013-14 to 217,325 in 2016-17.
At the same time, many more people living in their own homes or in settings such as supported housing or Shared Lives placements required a Court of Protection welfare order authorising the deprivation of their liberty, because DoLS did not apply to them.
Law Commissioner Nicholas Paines QC, who had overall responsibility for the Law Commission’s project, said: “In our report we were clear that the Deprivation of Liberty Safeguards needed to be replaced as a matter of pressing urgency.
“This new legislation, based broadly on our recommendations, will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in our society.”
Changes from Law Commission proposals
The government announced it would legislate to replace the DoLS in March, accepting (in full, or in principle) 42 of the commission’s 47 recommendations. However, commentators have pointed out that the bill differs in significant respects from the Law Commission blueprint.
In a post on his blog, leading Court of Protection barrister Alex Ruck Keene, who worked on the Law Commission plan, pointed out that the bill was different in the following ways:
- The LPS scheme proposed in the bill applies to people aged 18 and over, not those aged 16 and over as proposed by the commission.
- Under the bill, care homes would have considerably more responsibility to arrange assessments and consultation in relation to proposed deprivations of liberty.
- The bill focuses solely on the LPS and does not include the commission’s proposals to reform section 4 of the Mental Capacity Act to place greater weight on the person’s wishes and feelings when making best interests decisions, and section 5 to restrict the availability of the defence from liability for care staff acting in relation to a person whom they reasonably believe lacks capacity to consent to the actions concerned.
- The bill retains the current dividing line between a deprivation of liberty under the Mental Capacity Act and detention under the Mental Health Act, which the Law Commission’s proposals would have shifted by excluding the LPS from authorising arrangements for assessing or treating mental disorder in hospital.
- The bill doesn’t include the commission’s proposals to provide for people to take legal action against care providers for unlawful deprivations of liberty.
Ruck Keene also pointed out that the government has not included a statutory definition of a deprivation of liberty in the bill. Such a reform recommended by Parliament’s joint committee on human rights, in order to reduce the number of cases requiring authorisation and the level of intrusion on families.
The Law Commission’s proposals
The commission’s proposed replacement differed from DoLS in several significant respects:
- The Liberty Protection Safeguards (LPS) would apply to deprivations of liberty in all settings, not just care homes and hospitals, as with DoLS. This would mean that it would no longer be necessary to apply for a Court of Protection welfare order to authorise deprivations of liberty outside of care homes and hospitals.
- Hospitals and clinical commissioning groups would be able to authorise deprivations of liberty in England, not just councils, as with DoLS.
- The authorisation of a deprivation of liberty would turn on three assessments – a capacity assessment, a medical assessment to test ‘unsoundness of mind’ and an assessment of whether a deprivation is necessary and proportionate; DoLS was based on six, including a best interests assessment, which would be removed.
- The current best interests assessor (BIA) role, which coordinates the DoLS process, carries out the best interests assessment and is mostly performed by social workers, would be replaced by that of an approved mental capacity professional (AMCP).
- However, while a BIA is required in all DoLS cases, the AMCP would only be called upon to assess an LPS case where it appeared that the person did not want to reside or receive care or treatment in the proposed care setting.
- In cases where the person did not object, the body responsible for the placement (a local authority, hospital, CCG or health board) would need to arrange the three assessments and then have them independently reviewed by an employee not involved in the case.
- As such the LPS would be a two-tier system of safeguards, unlike the DoLS, where there is a single system for all cases.
As set out above, the bill differs in certain respects from the commission’s proposals.