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Liberty and Protection

10 April 2017

The Law Commission Report on Mental Capacity and Deprivation of Liberty and the new draft legislation, the “Mental Capacity (Amendment) Bill”, have been published.

Deprivation of liberty: the problem
Anyone working within the health and social care sector will be familiar with the frustration and confusion surrounding the existing legal framework for the care and treatment of individuals who lack capacity to consent, and who are being cared for in circumstances which deprive them of their liberty. The Deprivation of Liberty Safeguards (DoLS) - the bespoke authorisation process for people deprived of their liberty in care homes and hospitals – were described by the House of Lords Select Committee for the Mental Capacity Act 2005 (MCA) as “frequently not used…leaving individuals without the safeguards Parliament intended” and social care providers “vulnerable to legal challenge”.

The Law Commission was tasked with undertaking a complete review of the relevant legislation and, following a lengthy and detailed consultation, published its final report and draft bill on 13 March 2017.

Care providers have been hoping to see a new system put forward; one which is less convoluted, more straightforward to administer, and one that provides meaningful benefit for the individual concerned, whilst not overburdening providers with bureaucracy and expense.

Does it deliver?
The report sets out 47 recommendations that cover not only deprivation of liberty, but also reforms to improve MCA decision-making more widely. It is fair to say that the report and the provisions in the draft bill will probably receive a mixed reception from care providers. 

The good news:
There is a new scheme for authorising deprivation of liberty; the Liberty Protection Safeguards (LPS). This offers a simplified process, which retains some of the more useful features of DoLS, but happily dispenses the inefficient and unhelpful aspects. There are still three assessments to be undertaken, by at least two different independent assessors. 

Good news for providers:
Providers may particularly welcome the following features of the new proposed scheme:

It will no longer, necessarily, be left to care homes to identify a deprivation of liberty and apply for authorisation; instead the local authority or NHS body (the “responsible body”) becomes responsible for the entire process, where it has commissioned or put the arrangements in place. This significantly reduces the burden of form filling for care home managers and staff. 

The intention is that arrangements will be authorised in advance of being implemented.

It will no longer be the care home, but the "responsible body" who must notify the regulator if a deprivation of liberty is authorised.

“Urgent authorisations”, commonly used now by care homes to plug the gap, form no part of the proposed new system; although there will be authority to deprive a person of their liberty in truly urgent situations, pending authorisation by the responsible body.

The LPS will apply across all settings: care homes and hospitals; supported living; shared lives; respite; children’s homes; special residential schools; domestic and private arrangements; and potentially community provision, such as day centres.

LPS can cover transport to or between places, and arrangements carried out in more than one setting.

LPS can apply to anyone aged sixteen or over.

Initially, LPS can last up to twelve months. This can then be renewed for a further twelve months, after which time they can be indefinitely renewed for periods of up to three years.

Good news for the individual:
The LPS will authorise particular arrangements which give rise to a deprivation of liberty – the arrangements must be specific, not broad or vague.

LPS can only authorise arrangements that give rise to a deprivation of liberty, not, for example, restrictions on contact with family or friends.

Four key safeguards are included: reviews, independent advocacy, the right of legal challenge, and monitoring and reporting requirements.

Proposed amendments to s4 MCA mean that best interests' decision-making imposes an active duty to ascertain and give particular weight to the wishes and feelings of the individual.

Greater emphasis on the requirement to consult with family.

Improvements in advocacy provision?
The Commission recognised that advocacy services provide a vital safeguard for the individuals who are potentially deprived of their liberty, and expressed its commitment to the provision of an advocate (or an appropriate person) for anyone subject to an LPS. It will be the duty of the responsible body to source and appoint the advocate. An appropriate person is someone who is not engaged in providing care or treatment to the person in either a professional capacity or for remuneration. An appropriate person is formally appointed to represent and support the person on all matters arising under the LPS. Interestingly, the appropriate person will also be entitled to support, provided by an advocate, to assist them in fulfilling their role. The relevant person’s representative role is not included in the new scheme.

The draft bill highlights that advocacy support must be provided at the earliest possible stage – when a responsible body proposes to authorise arrangements, rather than an “after the event” measure.  The proposed legislation provides for “opt-out” advocacy, such that the responsible body must appoint an advocate unless the person either does not consent or, for some reason, the appointment of an advocate is found not to be in the individual’s best interests.

Consequently, rights to advocacy will inevitably increase under the LPS scheme, and may extend further given that the scheme extends to all care settings, not just hospitals or registered care homes.

Noting the long waiting lists in practice for those needing an advocacy service, the Commission has “urged government to review current levels of advocacy provision”.

Challenges for providers:
However, there are elements to the report and draft bill that may worry health and social care providers and prompt a review of certain aspects of practice - particularly in relation to admission procedures.

If care arrangements have not been commissioned or set up by an NHS body or a local authority, as in the case of self funders in care homes, it will still fall to the provider to apply to the responsible body for authorisation.

The draft bill creates a new civil claim for damages, should private care providers put arrangements in place that are not authorised, and give rise to a deprivation of liberty. However:

the provider will not be liable if it is reasonably believed that the arrangements did not give rise to a deprivation of liberty or the deprivation of liberty was in fact authorised; and

if the provider has made the appropriate referral to the responsible body, it will be covered for as long as it takes the responsible body to deal with the referral, if at all times they reasonably believe the individual lacks capacity to consent, and the arrangement is necessary for to prevent a serious deterioration in the person’s condition or to deliver life sustaining treatment.

What happens next?
The draft Mental Capacity (Amendment) Bill was laid before Parliament on 13 March 2017, and so now it has been passed over to the Government. It is impossible to guess how much of the original draft will survive the scrutiny and debate of the House of Commons and then the House of Lords, to ultimately receive Royal Assent by becoming an Act of Parliament. For the time being, therefore, it remains very much business as usual for the health and social care provider as far as deprivation of liberty is concerned.

For further information
Our team at Anthony Collins Solicitors will be monitoring the progress of this draft bill and will provide regular updates.

If you have require advice and assistance in the meantime in relation to the implementation or management of the existing schemes to authorise a Deprivation of Liberty, including DoLS, please do not hesitate to contact Sheree Green on sheree.green@anthonycollins.com or 0121 214 3728.

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