The Mental Capacity (Amendment) bill (the bill) has had its second reading in the House of Lords. The bill seeks to reform the current system of deprivation of liberty safeguards (DoLS) with a new approach termed ‘liberty protection safeguards’ which focus on the individual. The bill has been developed from recommendations made by the Law Commission in its 2017 report, Mental Capacity and Deprivation of Liberty.

Current position

During the House of Lords’ debate, clear consensus was reached; the current scheme which provides for deprivation of liberty authorisations is not fit for purpose and requires urgent reform. Substantial work has been undertaken behind the scenes to get to this stage and ensure that legislative amendments will provide a more efficient way of safeguarding vulnerable people. However the bill was met with some puzzled looks from health and social care professionals since. While there was general acceptance by government of the Law Commission’s recommendations, it appears that a number of their proposals have been omitted from the bill.

Resource implications since the ruling in Cheshire West referenced throughout the debate also highlight the importance of getting it right this time around. For example, Baroness Tyler highlighted that more than 120,000 people are currently waiting for an authorisation to be considered under the DoLS regime. The average waiting time for authorisation is currently 120 days which far exceeds the 21 day timeframe provided by the Mental Capacity Act 2005.

A key proposal that CCGs and hospitals need to be aware of is the proposed shift from the local authority as sole authoriser of DoLS as a supervisory body. It is proposed that local authorities will no longer be the sole responsible body with a new definition including independent hospitals, NHS trusts, CCGs/local health boards and local authorities.

The positives

The proposed liberty protection safeguards are considered to be ‘dynamic’ and ‘portable’. A DoL does indeed arise from the arrangements within a care plan rather than where the arrangements are being delivered. Therefore moving away from the idea that an institution deprives someone of their liberty as opposed to the arrangements doing so, is accepted as a step in the right direction.

Authorisation under the new regime amounts to a sort of ‘liberty protection passport’, which allows the arrangements which amount to a DoL to remain the same in many settings. A move will no longer trigger a new assessment, if arrangements remain the same, as authority to deprive will move with the person.

Health and social care professionals will likely accept this passport idea as streamlining the current paper tick box process. Furthermore, there is provision within the bill for powers of emergency DoL/deprivation pending authorisation under the new liberty protection safeguards regime.

Areas for improvement

Key areas for development include:

  • The Bill does not define DoL. Baroness Murphy proposed a definition which excludes people not objecting to their arrangements and those in family homes by their own choice
  • Measures to address concern that liberty protection safeguards recommendations apply to 16/17 year olds are not provided for, as suggested by the Law Commission
  • The interface with the Mental Health Act must be considered in more detail. As Baroness Meacher quite rightly highlighted, ‘changes to address problems in one system will surely have unintended consequences for the other’
  • The definition of ‘unsound mind’ – although currently accepted by the ECHR, could be updated and replaced with a wording to the effect of a ‘disorder or disability of the mind’
  • The omission of any reference to a person being able to consent in advance to care arrangements, in the same way that they may object to medical treatment in advance should be considered in more detail
  • The requirement for mandatory training for health and social care professionals, and care home managers on mental capacity and the new scheme when implemented is of utmost importance
  • Assisted decision making should be enhanced, especially in cases where capacity may fluctuate
  • Resource implications should be considered in more detail. Although local authorities will welcome proposals that CCGs and hospitals will be required to authorise a DoL under this regime, shifting resource pressures should be thoroughly analysed to ensure that cost in the process is reduced and not merely transferred to another public body

Conclusion… for now

While there is still work to be done, health and social care professionals, their lawyers and the families of those affected by the proposals, should welcome a bill that provides for the vulnerable to be safeguarded, in a way which is easy to implement and accessible to all. Ironing out issues such as those highlighted above will ensure that problems are avoided further down the line.

Committee stage, the first opportunity for line-by-line scrutiny of the bill, is scheduled for 5 September 2018. The independent review of the Mental Health Act is also due to produce a report with recommendations in autumn 2018 which will need to address the interface between the two regimes.