The Law Commission has published its consultation paper on Mental Capacity and Deprivation of Liberty (DoL). The review was prompted by concern that the current arrangements are not fit for purpose, particularly since the Supreme Court’s judgment in Cheshire West was handed down, which has vastly increased the volume of requests for authorisation both via local authorities and the Court of Protection. The consultation is open until 2 November 2015, after which the Commission aims to publish its recommendations to the Government, which may lead to significant changes to the DoLS landscape.

The consultation paper highlights a number of specific concerns with the current DoLS process. It states that the DoLS are poorly understood, fail to take sufficient account of a person’s article 8 rights and are incompatible with the ethos of the MCA. The Commission echoes comments made by the Court of Protection, most notably in the Neary case, that there is a conflict of interests between local authorities’ commissioning and safeguarding functions and their role as supervisory bodies, and that those subject to DoLS face many obstacles when seeking to challenge assessments and decisions made about them.

The paper questions why the statutory DoLS scheme has limited scope and does not apply to some domestic care settings. Interestingly, for NHS trust clients, it also comments that the DoLS are not adaptable to different settings and situations so that the same regime applies in intensive care hospital wards and accident and emergency departments as in long stay care homes. It comments that applying the DoLS procedure to hospices and end of life care may have no tangible benefit to the person and the added formalities at such a sensitive time can cause additional stress to families.

Further criticism is levelled at the lack of oversight once the DoLS are in place and the difficulties in monitoring DoLS, particularly ensuring that conditions attached to an authorisation are met.

Various broad objectives are set out for a new scheme. The paper recommends that it be flexible and establish different approaches in different settings; be less bureaucratic and deliver improved outcomes for the incapacitated person, their family and carers and have tangible benefits for them. It stresses that the empowering ethos of the MCA should be embraced within a new scheme so that it provides protection for vulnerable people without intruding upon their lives while giving greater weight to their opinions about their care and treatment.

The proposed new schemes

Supportive Care

The paper proposes a scheme of ‘supportive care’ for people who require supported living in a setting other than their own homes. This would place a duty on local authorities to carry out an assessment of a person’s capacity to make decisions about their place of residence and ensure that a proper best interest assessment is carried out so that the benefits and dis-benefits of the various options for placement are explored before any decision is made. An advocate would be appointed for the person in all cases. This reinforces the statutory duty placed on decision makers by section 4 of the MCA and would strengthen safeguarding measures introduced by The Care Act.

Restrictive Care

A scheme of ’restrictive care and treatment’ would replace the DoLS. The focus would be on providing safeguards for those who are subject to significant restrictions, including those who, at present would not qualify for DoLS. This would exclude cases involving ‘serious medical treatment’ which would continue to be dealt with by the Court of Protection. Under this scheme the best interest assessor (renamed Approved Mental Capacity Professional or AMCP) would be directly responsible for imposing and monitoring conditions placed upon care and treatment. The AMCP would have powers to make recommendations about care and treatment to authorise emergency restrictions.

Hospital/Palliative care

A bespoke scheme is proposed for NHS and private hospitals and for palliative care. This would apply to patients who require care or treatment within 28 days which is likely to amount to a DoL. Any DoL would need to be shown to be the most proportionate response to the likelihood of a person suffering harm and the seriousness of that harm. Those subject to such restrictions would have a Responsible Clinician who would certify the need for a DoL and devise and monitor care plans in consultation with the patient and those interested in his/her care. No extension of the DoL would be permitted unless an AMCP had carried out an assessment and confirmed that conditions are being met. A maximum authorisation period of 12 months is proposed.

Challenges

The Commission proposes that people caught by the new schemes should have a right to challenge the arrangements made for them via a specially constituted First-tier Tribunal. A right of appeal to the Court of Protection is also proposed. The Commission recommends that cases should be referred to the FTT once a particular time period has elapsed, reflecting the current arrangements for those detained under the MHA. All people caught by the scheme should have access to a representative.

The possibility of patients providing advance consent to a DoL are also mooted, possibly via a formal advance decision and for hospital patients the Commission suggests that the proposed scheme should not conflict with advance decisions or decisions made by a done under a valid and applicable LPA.

The Commission’s paper makes some sensible proposals in light of the current challenges facing local authorities and health bodies tasked with implementing the DoLS. Proposals in relation to a tailored scheme for hospital patients and those receiving palliative care will be particularly welcomed.