A Labour bid to scrap legislation to replace the Deprivation of Liberty Safeguards (DoLS) failed last night as the bill passed its first stage in the House of Commons.
The opposition had tried to get the Mental Capacity (Amendment) Bill thrown out on the grounds that it would not put the interests of service users first, would create conflicts of interest for independent health and social care providers, would not reduce the substantial backlog in deprivation of liberty cases and would not address the interface between the Mental Capacity Act 2005 and Mental Health Act 1983.
However, the motion was defeated through the greater numbers of Conservative and Democratic Unionist Party (DUP) members, which meant the bill passed its second reading in the Commons and will now be scrutinised in detail by a committee of MPs.
The legislation, which would introduce the Liberty Protection Safeguards (LPS) to replace DoLS, has already been approved by the House of Lords, where it was changed substantially to address concerns that the original version provided insufficient safeguards for individuals who were deprived of their liberty.
The committee stage of the bill in the House of Commons will start on 15 January 2019 and must be concluded by 24 January. The committee is taking written evidence from people with a particular expertise, experience or interest in the bill, who can send their submissions to email@example.com before the end of the committee stage.
The bill will then return to be considered by the whole house at the report and third reading stages, and then the Commons and Lords would need to agree a final version of the legislation before it becomes law – which the government is intending to achieve before the end of March.
The government has already promised to bring forward its own amendments in the Commons, including to extend the role of the approved mental capacity professional (see below) and enact a statutory definition of a deprivation of liberty, to provide greater clarity to practitioners. Labour is likely to seek to make further changes to the bill by tabling amendments at the committee and report stage in the Commons but will face challenges in getting these passed because of the combined majority of the Conservatives and DUP.
You can read yesterday’s debate here.
Changing the law on deprivation of liberty
The Liberty Protection Safeguards, like DoLS, would provide a system for authorising care arrangements in England and Wales that require a person to be deprived of their liberty, in line with the UK’s obligations under article 5 of the European Convention on Human Rights.
It would apply in cases where the responsible body was satisfied that a person lacked capacity to consent to arrangements and had a mental disorder, and that the arrangements were necessary to prevent harm to the person and proportionate to the seriousness and likelihood of that harm.
This would be based on separate assessments of capacity, mental health and necessity and proportionality, and every case would be reviewed prior to authorisation (“a pre-authorisation review”) to check that the three conditions had been met. Such a review would always be carried out by someone independent of the person’s care or treatment, but where it was believed the person was objecting to their arrangements, a specially trained and qualified practitioner, known as an approved mental capacity professional (AMCP), would carry it out. The government intends to extend the role of the AMCP, including to cases in settings run by independent hospitals.
The authorisation process would require consultation with the person who faced detention (known as the “cared-for person”), any carer, attorney or deputy and anyone with an interest in the cared-for person’s welfare. The cared-for person would also be entitled to the support of an appropriate person – an informal advocate who would usually be a family member or friend – or an independent mental capacity advocate (IMCA).
The LPS would differ from the DoLS in the following ways:
- It would apply in any setting in which a person may be deprived of their liberty, not just care homes or hospitals, as with DoLS.
- The “responsible body”, which would sign off the authorisation, differs by setting, unlike under DoLS in England, where local authorities take on the role in all cases; by contrast, under LPS, local authorities would be responsible for cases in social care settings or people’s homes, hospital managers for cases in their own settings and English clinical commissioning groups or Welsh local health boards for continuing healthcare cases.
- Responsible local authorities may give care home managers responsibility for overseeing cases in their settings, which would involve commissioning assessments, arranging consultation and reporting back to the authority on whether the authorisation conditions had been met – though sign-off would remain the authority’s responsibility. Under DoLS, all care home cases fall under the responsibility of the local authority that is the supervisory body and are managed by best interests assessors (BIAs) on their behalf.
- The LPS would apply to anyone aged 16 or over, not 18, as with DoLS.
- While the tests for an authorisation under the LPS and DoLS are similar, it would no longer be required that the arrangements are in the person’s best interests under the LPS.
- Assessments would no longer have to be carried out by specially trained and qualified assessors – as with best interests and mental health assessors under DoLS – though assessors would need to have appropriate experience and knowledge. The only role that required a distinct qualification and particular training under the LPS would be that of the AMCP.
- While LPS authorisations, like DoLS cases, would have an initial limit of 12 months, they would be renewable, unlike with DoLS, where a fresh authorisation is required after one expires. While the first renewal would have a limit of 12 months, subsequent renewals could be for up to three years.