By Luke Haynes and Mithran Samuel
The government’s proposed ‘definition’ of a deprivation of liberty has been rejected by the House of Lords, which this week inserted an alternative description into legislation to replace the Deprivation of Liberty Safeguards (DoLS).
Peers overturned the government definition in the Mental Capacity (Amendment) Bill, and instead backed an amendment tabled by Liberal Democrat peer Baroness Tyler to change the definition. The bill would replace DoLS with a new system – the Liberty Protection Safeguards – for authorising deprivations of liberty in health and social care settings.
Read more on the Mental Capacity (Amendment) Bill:
While the government definition, which ministers called a ‘statutory clarification’, set out what a deprivation of liberty was not, Tyler’s defined a deprivation of liberty positively. The two ‘definitions’ are listed below:
The House of Lords had previously agreed a version of the bill, and this week’s debate was to consider amendments made since then by the Commons.
All of the other Commons amendments, besides the government definition, were passed, but the Lords also made one further change to the bill; this was to tighten information sharing requirements on those councils and NHS bodies who are ‘responsible bodies’ for authorising deprivations of liberty under the legislation.
The bill will now have to return to the Commons, who must either agree the Lords’ changes, leading to the bill becoming law, or make further changes that would need then to be agreed by peers.
During this week’s debate, the government strongly criticised Tyler’s definition, signalling that it would seek to overturn it in the Commons.
‘Very difficult to understand’
In proposing her amendment, Tyler criticised the government’s decision to provide a ‘negative’ definition, which she said was “very difficult to understand” and failed to allow for a “clear assessment” of whether an individual was being deprived of their liberty.
Tyler said what was needed was a definition that provided “absolute clarity for practitioners” and enabled cared-for people and their families to determine when they were deprived of their liberty and their rights were engaged. She said this was provided by the ‘acid test’ set out in the Supreme Court’s Cheshire West judgment – the leading domestic case in defining a deprivation of liberty – which her amendment was designed to follow.
Do you understand Cheshire West?
However, health minister Baroness Blackwood said Tyler’s amendment was deficient because it was not explicitly based on article 5 of the European Convention on Human Rights (ECHR), the fundamental basis of deprivation of liberty law.
While the government’s proposed definition stated that references to deprivation of liberty in the legislation had the same meaning as article 5, this was not referenced in Tyler’s.
Blackwood said the amendment would create “two divergent concepts” of deprivation of liberty, one set by Parliament and one from the ECHR, which risked creating “confusion and uncertainty” for practitioners.
She added the government’s definition, instead, created a “clear” relationship between Parliament’s definition and the ECHR’s.
Blackwood added that Tyler’s definition was “narrower” than article 5, meaning those people who fell outside Parliament’s definition, but within the ECHR definition, would have to take their case to the High Court because they would not be covered by the Mental Capacity Act, creating delays.
The strength of Blackwood’s response to Tyler’s amendment suggests the government will seek to reinsert its definition, or something similar to it, when the bill returns to the Commons.
The other change made by peers in this week’s debate was designed to strengthen requirements already in the bill for responsible bodies to provide a record of the deprivation of liberty authorisation to the cared-for person, and any independent mental capacity advocate or appropriate person supporting them, as soon as possible after the authorisation.
The amendment means the responsible body would require responsible bodies to record and justify any decision not to give the authorisation record immediately, and to carry out a review if the information is not supplied within 72 hours of the authorisation. The Commons will also get to vote on this amendment when the bill returns to the other chamber.