The bill to reform the law on deprivation of liberty does not adequately secure the rights of people subject to restrictive care arrangements, members of the House of Lords have warned.
In Parliament’s first debate on the Mental Capacity (Amendment) Bill on Monday (16 May), peers questioned several aspects of the legislation, which would replace the Deprivation of Liberty Safeguards (DoLS) with a new system, the Liberty Protection Safeguards (LPS).
The LPS is designed to provide a much less bureaucratic system than DoLS for authorising health and social care arrangements that involve a deprivation of liberty to which a person cannot consent.
Junior health and social care minister Lord O’Shaughnessy opened the debate at the bill’s second reading in the Lords by saying the LPS would be less burdensome than DoLS on people, carers and local authorities, saving the latter an estimated £160m a year.
He said it would do this by making consideration of restrictions on people’s liberties a part of their overall care planning and eliminating repeat assessments and authorisations.
However, peers from across the House of Lords said several aspects of the bill risked weakening safeguards for people deprived of their liberty.
Labour peer Lord Touhig, vice-president of the National Autistic Society (NAS), voiced concerns about the rights of autistic people under the bill’s proposals, insisting that many of the problems with the existing system had not been addressed.
He cited as particularly problematic the removal of the best interests assessment currently provided under DoLS, which ensures that arrangements to deprive a person of their liberty are in the individual’s best interests, necessary to protect them from harm and proportionate to the likelihood and seriousness of that harm.
Under the LPS, the equivalent requirement would be to establish that the arrangements are necessary and proportionate, one of three criteria that must be met for an LPS authorisation, the others being that the person lacks capacity to consent and is of “unsound mind”.
“The new criteria risk losing sight of what is best for the individual and what the individual wants,” said Touhig. “Let us be wary of enacting legislation that pays scant regard to the individual, in particular an individual who is perhaps the most vulnerable in society.”
Liberal Democrat peer Baroness Barker highlighted problems with the ability of bodies authorising LPS arrangements to rely on historic assessments of mental capacity, which may have been carried out for other purposes.
She said: “There is a danger that we might end up with decisions being made about a person’s capacity to make one decision which rests on information that was gathered for a wholly different purpose. That would not be right.”
Under the bill, the “responsible body” – local authorities in the case of social care arrangements and hospitals, clinical commissioning groups or Welsh health boards in health cases – must carry out a pre-authorisation review to determine whether the criteria for deprivation of liberty have been met.
In most cases, this would be carried out by a practitioner not involved in the person’s care arrangements. But where the person is objecting to the arrangements, the pre-authorisation review would be carried out by an approved mental capacity professional, a new role that would, in effect, replace that of the best interests assessor under DoLS.
However, some peers expressed confusion at both the purpose and importance of the AMCP role.
“This role replaces the best interest assessors’ role under the Mental Capacity Act,” said Baroness Greengross, a crossbencher and chief executive of ageing think-tank the International Longevity Centre – UK. However, the bill and the explanatory notes do not detail which professionals could act in this new role and how they interact with other clinicians.” She asked O’Shaughnessy for more information on the role.
Baroness Hollins, a crossbencher and former learning disability psychiatrist, warned it would be difficult to determine whether a person was objecting to their arrangements, the gateway to accessing an AMCP.
“The expertise and independence of this role is a welcome addition to the safeguards, but it seems that AMCPs will only be called upon if the individual objects. Who judges if the person is objecting?” she said.
This point was also made by Lord Touhig, who called for AMCPs to carry out the pre-authorisation review “in all circumstances”.
Peers also raised concerns about the substantial added responsibilities placed on care home managers, compared with DoLS, a point made forcefully already by critics outside Parliament.
Changes from Law Commission proposals
The bill is based on proposals produced last year by Law Commission following a government-commissioned review of the law on deprivation of liberty in care, but the government has not included several of the commission’s proposals in the bill.
Barker added those working on the bill had “selectively picked” from the Law Commission’s proposals in place of accepting the “whole package of measures” that had been created to produce “a robust defence” for individuals.
Among Law Commission proposals omitted are applying the LPS scheme to 16- and 17-year-olds, reforming the best interests test under the Mental Capacity Act 2005 to place a greater weight on people’s wishes and feelings and reforming section 5 of the MCA 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.
‘A backward step’
Sarah Lambert, head of policy and public affairs at the National Autistic Society (NAS), reiterated the arguments of those inside the House of Lords, saying: “NAS has substantial concerns that the bill, as drafted, does not put autistic or other individuals, who lack capacity, at the centre of decisions about their care.”
“Firstly, the bill moves away from the current position, where decisions should be made in someone’s ‘best interests’ and so risks losing sight of what is best for the individual, or what that individual wants.”
“Even though someone may lack capacity to make a decision about their living arrangements, their preferences or wishes should be a central factor in any decision about their lives. This makes it a backward step in protecting the rights people who lack capacity to consent to their care.”
“We will be working with members of the House of Lords and MPs as the bill passes through Parliament to make sure substantial amendments are made to secure the rights of autistic people and others.”
The second reading will be followed by the committee stage of the bill, in which the House of Lords will subject the bill to line-by-line scrutiny. This is scheduled for the beginning of September.
With several questions regarding the bill and the government’s decision to stray from the Law Commission’s proposals, it is expected that changes will be forthcoming.
Lord O’Shaughnessy appeared to address this fact in his final comments, saying the government would “reflect on” whether changes could be made.
“It has been clear from this debate that there is still much work to be done to provide the right kind of reforms that we all want to see,” O’Shaughnessy said.
Some amendments have already been tabled to the bill by Labour shadow health minister Baroness Thornton. These would apply the reforms to people 16- and 17-year-olds and specify that the provisions must be read in a way which is compatible with Article 5 of the European Convention of Human Rights, which secures the right to liberty.