The Law Commission report and the Draft Mental Capacity (Amendment) Bill 2017

On 13 March 2017, the Law Commission published its report and accompanying Draft Mental Capacity (Amendment Bill 2017), proposing reforms to the Mental Capacity Act 2005 and the deprivation of liberty safeguards (DoLS). A response is now awaited from the Government. Whilst substantive change may yet be some time coming, the Law Commission’s final report has certainly given us plenty to think about and we consider below some key proposed changes.

The final report recommends the repeal of DoLS as a matter of urgency. In its place, the Law Commission proposes the liberty protection safeguards (LPS). This scheme is intended to be less onerous than DoLS, but aims to improve the protection of human rights. Of particular note is the fact that the LPS will cover a broader group of people than those currently covered by DoLS, which is presently restricted to placements in care homes and hospitals. The LPS would extend to supported and shared living arrangements. It would also cover 16 and 17 year olds, whereas the DoLS regime is currently limited to those over 18 years old. These extensions address the current (unsatisfactory) situation where all such arrangements must be authorised by the court.

Where a potential deprivation of liberty is identified, the onus will now be upon the commissioning organisations to arrange authorisation. It will be for the newly termed ‘responsible body’ (local authority, hospital managers and CCGs commissioning care) to seek authorisation. This is intended to make the authorisation process truly central to the care or treatment planning process.

The new process is to consist of the following stages:

Stage 1: An advocate or appropriate person is appointed by the responsible body to represent the individual (P) for whom a deprivation of liberty is proposed.

Stage 2: The responsible body arranges for three assessments (capacity assessment, medical assessment and the ‘necessary and proportionate assessment’) to be carried out by a minimum of two assessors, working independently of one another. In a drive to cut down on unnecessary paperwork, it is intended that practitioners will be able to rely upon previous/other assessments where reasonable to do so. The draft Bill does not set a time limit on the use of capacity and medical assessments, but provides that equivalent assessments can be used where they remain a reliable indicator of P’s current condition. Again, this aims to counteract the current requirement for a new assessment to be generated every 12 months.

Stage 3: Each application will be checked by an independent reviewer, who must have ‘operational independence’, i.e. must not be involved in the day-to-day care of the individual, but can be employed by the responsible body. If the independent reviewer feels that conditions for authorisation are met then they can confirm their approval and the responsible body can proceed with authorisation.

If the independent reviewer is not satisfied that the conditions are met, then the application must be referred to an approved mental capacity professional (AMCP) who is required to scrutinise the assessments and meet with P, before determining whether or not to approve the deprivation arrangements. There will be a duty to refer cases to the AMCP either where there is objection to the proposed arrangements or where the main basis of the deprivation of liberty is the risk of harm posed to others. Thereafter, a referral to court may still be required, but it is clearly intended that the AMCP should be the first step.

Perhaps of most interest is the recommendation that once the deprivation is authorised, the ‘record of authorisation’ will become part of an individual’s care plan. LPS authorisations are to follow the patient, with amendments being made as new arrangements arise. This is clearly intended to counteract the inefficient aspect of DoLS, whereby authorisation is tied to one particular setting. Authorisations under the LPS would cover multiple settings, arrangements for transport and arrangements to return P to a particular setting in the event of absconsion, thereby plugging some key gaps in the current regime under DoLS. To make the most of this improvement, decision makers will need to be clear and precise as to the detail of the particular arrangements being authorised. They will also need to identify proposed changes promptly and ensure that these are duly approved in advance of being put in place. However, it appears to be the intention that these authorisations should become more flexible and reflective of the reality of modern-day care.

Finally, it is noted that authorisations under the LPS would be granted for an initial 12 months, followed by review and the potential to renew for a further 12 months. Thereafter, authorisation could be provided for up to three years. Under DoLS, no authorisation can exceed 12 months. In response to concerns that the extended authorisation period weakens the scheme, it is noted that:

  1. For a three-year authorisation to even be contemplated there will already have been two full reviews of an individual’s care; and
  2. There remains an on-going duty to review care arrangements and reviews should take place at least on an annual basis under the Care Act 2014.

Again, this is part of the drive to cut down on the level of paperwork required in annual reviews which will no doubt be welcomed by health and social care practitioners.

Private care providers will need to be aware of the introduction of the new tort of unlawful deprivation of liberty. The draft Bill provides that civil proceedings may be brought against a private care provider where identified care or treatment arrangements giving rise to a deprivation of liberty have not been authorised.

In summary, the LPS is designed to improve patient participation. There will be an active duty to ascertain an individual’s wishes, feelings, beliefs and values and this will need to be well documented by practitioners. The intention of the Law Commission is clearly to make the LPS scheme more accessible and reflective of the realities of day-to-day care.

There is still a way to go before the changes come into effect and amendments may be made to the proposals once they receive the scrutiny of Parliament. Any substantive change will take at least a couple of years and in the interim current practice and the current DoLS scheme will continue.

However, for those keen to get ahead of the game (whilst also improving current practice), practitioners would be well-advised to ensure that they get into the habit of:

  1. Actively ascertaining the views of P in all best interests decision-making processes;
  2. Carefully documenting current best interests decision with as much detail as possible; and
  3. Considering future care options at the earliest possible opportunity.

The drive will be towards being pro-active in these cases and as a matter of good practice steps should be taken to implement that approach now.