By Tim Spencer-Lane, legal editor, CC Inform
The draft updated Mental Capacity Act Code of Practice, was published for public consultation on 17 March. As well as updating the existing MCA code, the updated version also includes details on how the Liberty Protection Safeguards (LPS) should be implemented.
The LPS is the new scheme for authorising health and social care arrangements that give rise to a deprivation of liberty, replacing the Deprivation of Liberty Safeguards (DoLS) and Court of Protection authorisations of arrangements not covered by DoLS. There is as yet no implementation date for LPS.
The government has decided to produce one overarching code to ensure the principles of the MCA are embedded in the LPS from its introduction. Draft regulations to support the implementation of the LPS have also been published.
This is a summary of the parts of the draft code that relate directly to the LPS, with paragraph references for the relevant sections. A summary of the other changes to the code will be published shortly. Consultation ends on 4 July.
The meaning of deprivation of liberty
The draft code sets out the how the acid test set out in the 2014 Cheshire West judgment – that a person must be under continuous supervision and control and not free to leave to be objectively deprived of their liberty – should be interpreted. It says freedom to leave means freedom to leave permanently, in the sense of being able to live with whomever the person chooses. This may need to be adjusted in cases not involving living arrangements, such as education and transport arrangements, to consider whether the person can refuse this altogether (12.15-12.19).
Supervision is defined as the “‘monitoring’ or ‘observation’ of the person in order to keep them safe or protect them from harm”. One way to determine whether the person is subject to continuous supervision is to ask whether there is a plan which means that it is known at all times where the person is and what they are doing, and someone would intervene to protect the person if they were at risk of harm (12.21-12.30).
Control is defined as another person, whether a family member, professional or other, making decisions of importance in a person’s life, including on residence, daily activities, contact with others and care and treatment. The person may not be under constant control if they are free to make their own choices or if support is being provided to facilitate them doing what they want (12.31-12.38).
If a person is living at home, the acid test should be nuanced. For example, freedom to leave should be considered in terms of what would happen if the person tried to leave temporarily and the test of capacity will normally be less onerous than the test that would apply in hospitals and care homes (12.20, 12.44-12.45 and 12.53-12.54).
A person with capacity can consent in advance to specific arrangements that would otherwise amount to a deprivation of liberty. This is often referred to as “advance consent” and will mean that the person is not being deprived of liberty if they subsequently lose capacity and those arrangements are implemented (12.55-12.68).
Deprivation of liberty will not occur if the person is being treated for a physical illness and the arrangements are the same as would have been in place for a person who did not have a mental disorder. This is known as the “Ferreira principle” and can be applied to any setting and any form of medical treatment (12.77-12.81).
Court of Protection role
The draft code sets out that authorising arrangements should no longer be the role of the Court of Protection except in rare circumstances. Therefore, responsible bodies – who are responsible for authorisations in determined settings or contexts – should not make applications for an authorisation to the court.
But where the court is dealing with a decision closely intertwined with deprivation of liberty (such as tenancy agreements), it can consider the issues together (7.39-7.41).
Mainstreaming LPS in care arrangements
In numerous places, the draft code gives guidance aimed at ensuring the LPS is carried out alongside other health and care assessment, planning and review processes as far as possible. This helps to reduces unnecessary duplication and bureaucracy (eg, 13.5, 13.28-13.29 and 16.3).
Responsibility to refer
The draft code underlines that all health and social care professionals, staff members and care providers have a responsibility to be aware of the potential for a deprivation of liberty to arise and take appropriate action, including by making an LPS referral. The responsible body should inform the referrer within five working days that the referral has been accepted (13.24-13.25).
The three LPS assessments
The LPS provide that a responsible body may authorise arrangements giving rise to a deprivation of liberty if:
- the person lacks capacity to consent to the arrangements;
- the person has a mental disorder within the meaning of section 1(2) of the Mental Health Act 1983; and
- the arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person.
The draft regulations specify who may carry out the relevant assessments for determining whether these authorisation conditions are met.
They say that the capacity assessment and the necessary and proportionate assessment must be carried out by a social worker, doctor, nurse, occupational therapist, psychologist or speech and language therapist. The medical assessment must be carried out by a doctor or clinical psychologist.
The draft code sets out that the assessment process (from referral to a decision about authorisation) should not exceed 21 days (13.26). There should be no fewer than two professionals involved in carrying out the three assessments. For example, the person’s social worker could undertake the capacity and necessary and proportionate assessments, and a doctor could provide the medical assessment. The professionals carrying out the assessments should have a degree of independence from each other; for example they should not be members of the same clinical team (16.8-16. 10).
Under the LPS, the responsible body must in all cases arrange for a “pre-authorisation review” to be carried out to provide an independent check on whether the three authorisation conditions have been met.
In three circumstances, this review must be carried out by an approved mental capacity professional, a new role created under LPS. These are:
- If it is reasonable to believe that person does not wish to reside in, or receive care or treatment at, a particular place.
- The arrangements provide for the person to receive care or treatment mainly in an independent hospital.
- The responsible body refers the case to an AMCP and the AMCP accepts the referral.
The draft code says that the individual carrying out the pre-authorisation review in non-AMCP cases does not need to be a health or social care professional. However, they should have an applied understanding of the MCA and the LPS process (13.44).
The approved mental capacity professional
The draft regulations set out that an AMCP can be a social worker, nurse, occupational therapist, psychologist or speech and language therapist. They must also have two years’ post-registration experience and have undertaken specialist training, as is the case with the current best interests assessor role under DoLS.
The draft code provides a non-exhaustive list of cases on when the responsible body may refer a case to an AMCP despite not being required to do so. These are when high levels of restraint are being used, the case is on the borderline between the LPS and the Mental Health Act 1983 or the responsible body decides the case would benefit from the expertise of an AMCP, for example, because of its complexity. (18.38). Responsible bodies should not refer cases directly to an individual AMCP. Instead, there should be an AMCP team that considers referrals and decides who carries out pre-authorisation reviews. This is to ensure the independence of the AMCP. This team may be organised by the local authority and/or responsible bodies (13.50 and 18.10-18.14).
AMCPs will normally be employed by a responsible body. As well as approving AMCPs, local authorities should manage their ingoing approval. AMCPs should only be approved by one local authority at a time, although they can act for other local authorities. The AMCP should also have annual performance reviews with their approving local authority (18.2-18.20).
The AMCP’s primary role is to determine if the authorisation conditions are met. In addition, their role includes safeguarding, drafting the authorisation record and placing conditions on the authorisation. AMCPs also carry out reviews of the authorisation in cases where the person did not originally object to the arrangements but is now objecting. In some cases, AMCPs can grant the authorisation on behalf of the responsible body (13.52-13.99 and 18.46-18.63).
The draft code explains that, as a general rule, where changes of setting can be reasonably foreseen, such as regular respite or a planned move, these can be included in the authorisation record. This will avoid the need to give new authorisations each time the person moves settings. In limited circumstances, the responsible body may vary an authorisation. For example, it can make minor changes or remove arrangements, but cannot add new settings or arrangements (13.77-13.78).
The draft code confirms that at the renewal stage, where the person’s arrangements have been stable for some time and their condition has not changed, the responsible body may be able to renew without new assessments being commissioned. In cases where the conditions are met, but changes to the arrangements are needed, previous assessments can normally be used and a brief necessary and proportionate assessment will suffice (13.107-13.110 and 16.20).
The responsible body
Where there is a dispute about who is the responsible body, the draft code sets out a process to be followed. This involves the responsible body that received the initial referral beginning the LPS process, while discussions take place, and identifying a named individual to act as a point of contact. Any costs incurred can be transferred to the correct responsible body. If a dispute cannot be resolved by the organisations involved, the matter may have to be resolved by a court (14.61-14.67).
IMCAs and the appropriate person
The duty to appoint an independent mental capacity advocate (IMCA) applies if there is no appropriate person who would be able to represent and support the person – unless the appointment of an IMCA is not in the person’s best interests.
The draft code makes clear that it would be extremely rare that an IMCA would not be appointed in such circumstances, giving the example of a person at the end of their life who does not want an IMCA appointed (10.74).
The appropriate person will in most cases be a family member or trusted friend. They could also be a volunteer who provides support to the person, an advocate or helper at a day centre or club which the person attends. The draft code sets out a process for the responsible body to follow when appointing the appropriate person. The appropriate person should not be someone who lives at distance and only has occasional contact or someone who does not understand the local authority process. In some cases, the appropriate person should not be someone who supports the arrangements (15.3-15.22).
Tim Spencer-Lane is a lawyer specialising in adult social care, mental capacity and mental health, and is legal editor of Community Care Inform.