22nd March 2017

Proposed changes to the Mental Capacity Act and DoLS: what do they mean to us?

The Law Commission has published its ‘draft Mental Capacity (Amendment) Bill’, together with a lucid but long report explaining how they reached their proposals.

There are two main themes to the proposals: changes to the wider Mental Capacity Act (MCA), and a complete replacement of the deprivation of liberty safeguards (DoLS) with a new scheme, the Liberty Protection Safeguards. In this article, I’m just dealing with the Liberty Protection Safeguards: I’ll write again shortly about the changes they propose to the MCA.

In the information that follows, there’s a bit of a caveat: these proposals are with the Government now for a response, and there may be what’s called pre-legislative scrutiny before the draft Bill even goes to Parliament. So, there could be changes even before the Houses of Commons and Lords get to it; and there are almost sure to be a range of amendments and changes at that stage.

And there’s something else that might slow it down. As we know, Brexit is likely to be triggered on 29 March, and Parliament will be incredibly busy with all the laws that need to be adapted back to UK law from EU ones. Nobody seems to know how long it will be before this draft Bill can get time in the Parliamentary calendar (but if I hear anything I’ll keep you posted!)

So, what are the main questions you’d like answering? I’m guessing that you’d like to know the outlines of the new Liberty Protection Safeguards, at least how they are looking at this time and some clues about what it will mean for providers.

Main planks of the Liberty Protection Safeguards

A major intention of the Law Commission in coming up with replacement legal framework is to reduce bureaucracy and make the whole system easier to understand and operate. They do this by sweeping away much of the current DoLS rules and paperwork.

Who do the Liberty Protection Safeguards apply to?

Currently, DoLS only apply to people aged 18 and above, who are in care homes or hospitals. The new scheme significantly widens these categories.

Liberty Protection Safeguards will apply, like the rest of the MCA, to people aged 16 and above, who lack capacity to consent to certain arrangements and are of ‘unsound mind’ within the meaning of the European Convention on Human rights.

What arrangements can be authorised?

The liberty protection Safeguards apply to arrangements that are proposed (or in place) to enable the care or treatment of the person, and which would give rise to a deprivation of liberty.

Remember that this is explained by the Supreme Court as happening when the ‘acid test’ is met: a person is not free to leave the place where care or treatment is occurring and is also under complete supervision and control.

The ‘arrangements’ that can be authorised are wider than DoLS, and can apply to a range of settings within the same authorisation. The following arrangements can be authorised:

  • A person is to reside in, or be cared for, in one or more particular places (which could be a care home or hospital, but which might be their private dwelling, or supported living , or a shared lives scheme or any combination as long as it has been foreseen in the terms of the authorisation).
  • A person is to receive care or treatment at one or more particular places; and
  • The means and manner in which a person can be transported to a particular place or places.

Note that this means a person can have one authorisation and it would be able to go with them into hospital (and authorise the ambulance on the journey), or from their own home to a day centre and back, and while they are there, if their care meets the ‘acid test.’

This is a great advantage, as is the change from DoLS being only lawful to prevent harm to the person, to the Liberty Protection Safeguards being lawful also to prevent harm to others. DoLS assessors report having to ‘fudge’ the assessment by saying that it was in the person’s best interests to be prevented from harming other people because it would be distressing for them to be hit back, or taken to court.

All these different providers would not have to keep requesting and ending authorisations, and the effect will be that more people will have their rights protected in this way. As well, it has been a worry that local authorities have often done nothing to seek authorisations for people in supported living settings, for example, because it would cost so much: this is hard on the provider, who is working without the lawful protection of an authorisation.

Who can authorise these arrangements?

There is a new phrase, the ‘responsible body’, which describes who can authorise the arrangements. If the person is receiving treatment in hospital or as part of NHS continuing health care, the responsible body will be the relevant NHS body. This means it will be the hospital trust, the clinical commissioning group or, in Wales, the local health board.

In all other settings, the responsible body is the local authority: this includes, as DoLS do now, people who fund their own care.

It also covers supported living, shared lives schemes, extra care housing, and people in their own homes.

So for most of us, there is no real change in that the local authority becomes the ‘responsible body’ rather than the current supervisory body. But the authorisation can stay in effect and travel with the person if they go into hospital, for example.

What is the process for getting an authorisation?

There are three assessments, by at least two different assessors, who must not be involved with the person’s care or in a line management relationship with someone who is. The three assessments are:

  • Mental capacity assessment; does the person lack capacity to consent to the arrangements?
  • Medical assessment: is the person of ‘unsound mind’? (The Law Commission doesn’t like that old-fashioned phrase any more than most of us do, but it is the language of the European Convention on Human Rights.)
  • Are the arrangements necessary and proportionate? This is a simplified version of the current best interests assessment, though it’s wider than the DoLS assessment in that it allows for harm to others to be considered when deciding whether it is necessary and proportionate to deprive someone of their liberty.

Reviews, like initial assessments, are generally carried out by the staff of the responsible body. But there is a new role, Approved Mental Capacity Professional (AMCP), taking over in many ways from the role of Best Interests Assessor (BIA) under DoLS.

This new role is a protection for the person in that if they object to the arrangements, the case must be referred to the AMCP, who will reexamine the situation to see if it is truly necessary and proportionate to deprive this person of their liberty.

Once granted, an authorisation can if required last for a maximum of a year in the first instance, and is then renewable (unlike DoLS), once for a further year and thereafter for as many periods as required, of up to three years at a time.

What safeguards are there for the person?

If someone is subject to the Liberty Protection Safeguards, they will have regular reviews of the authorised arrangements, and the right to request a review. They will also have an advocate or an ‘appropriate person’ (rather than the current DoLS ‘relevant person’s representative’, though still often a relative or friend) to represent and support them both during the assessment process and during the period of the authorisation itself.

They also have the right to appeal to a court, though the Law Commission has not yet decided whether that might be some sort of Tribunal or, as at present, the Court of Protection.

Conclusion

Will the new scheme be easier for providers?

Yes, in many ways. You will no longer be responsible, as you are under DoLS, for ‘setting the ball rolling’ and asking for authorisation. It will be up to the commissioners and local authority to recognise that a person might be deprived of their liberty, and to arrange authorisation before the care package begins.

It is easier, too, that a person’s authorisation can travel with them, provided the changes were foreseen in the wording of the authorisation: so a person will arrive at the respite unit, for example, with the restrictions on their freedom already authorised; if someone needs to go to hospital, the journey itself is covered by the authorisation. It won’t matter whether you are in a care home, supported living, or other community setting: the process, which is more light touch than DoLS, is the same.

But remember: until it becomes law, the way to protect the rights of vulnerable people is by engaging with the DoLS process. The important thing, while waiting for the new system to become the law, is to use DoLS to protect both users of services and your staff. Also, always work within the framework of the wider MCA, and to record your decision-making so that people know you are doing so.

You can read the Law Commission report and the draft Bill at:

http://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty

*All information is correct at the time of publishing

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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