Introduced in 2009 the scheme was intended to protect the rights of individuals who lacked mental capacity to consent to their stay in hospital or a care home and were therefore ‘deprived of their liberty’. Since its introduction, DoLS has received significant criticism being described as unwieldly, overly complex and ultimately not fit for purpose.
In June this year the Joint Committee on Human Rights (“JCHR”) published its report considering both the current system and the reforms proposed by the Law Commission, the Liberty Protection Safeguards (“LPS”).
Its criticism of the existing scheme was scathing, with the Committee concluding (to no one’s surprise) that the system is broken, leaving thousands of people unlawfully detained, and that the reforms proposed by the Law Commission should be implemented as a matter of urgency. From a care providers perspective, the Committee noted that those responsible for the care and treatment of a mentally incapacitated individual, are in effect having to work out how best to break the law.
Given the ongoing grappling with Brexit, no one anticipated that the Law Commission proposals would be given much thought by the Government. Imagine then the surprise of many commentators including ourselves, when in early July the Government published its new draft Bill, the Mental Capacity Act (Amendment Bill).
(Available at: https://services.parliament.uk/ bills/2017-19/mentalcapacityamendment.html)
In announcing the Bill, the Department of Health and Social Care stated that “the new law seeks to protect the rights of people who do not have the mental capacity to make decisions about their care and to reduce the burden on local authorities”.
We have detailed some of the key points below, but must echo the disappointment of many, and say that the Bill, in its current form is not fit for purpose. The Bill (at present) reads as rushed and many of the recommendations from the Law Commission are not included: the result is that whilst the individual is supposed to be at the centre of the process, they seem more of an administrative inconvenience.
The proposed new schedule “AA1” contains the nuts and bolts of the new administrative scheme. It contains the ‘authorisation conditions’ whereby a person who lacks capacity to consent to care arrangements which amount to a deprivation, can be lawfully deprived of their liberty if:
- The person lacks capacity to consent to the arrangements
- The person is of unsound mind, and
- The arrangements are necessary and proportionate
Like many others, we would question the appropriateness of the term ‘unsound mind’. Whilst this is the language in Article 5 European Convention on Human Rights, things have moved on. Also, where are best interests in ‘necessary and proportionate’?
Other issues include:
- There is no legal definition of deprivation of liberty. Therefore, the definition contained in Article 5 European Convention of Human Rights remains applicable, as does the acid test in Cheshire West. Clarity would be helpful.
- The new scheme will only apply to those 18 and over. Unlike the rest of the Mental Capacity Act 2005, which applies to those over 16, and contrary to the Law Commission proposals.
- The new schedule will not only apply to those in a care home or hospital setting but will also extend to those living in the community, whether this supported living, extra care etc.
- Authorisations are signed off by an Approved Mental Capacity Professional who must meet with the individual “if it appears appropriate and practicable to do so”...! When wouldn’t this be appropriate?
- Responsibility for authorising deprivations will be split, between local authorities and health – according to where the individual is residing and the underlying funding arrangements. However, care home providers...yes, you read it right... care home providers will be the work horse behind these arrangements. If you are a care home provider you will be expected to identify a deprivation of liberty, arrange relevant assessments, consult with others, record and provide evidence to send to the local authority along with a ‘draft authorisation’.
- Authorisations are ‘renewed’: the first authorisation can be up to twelve months, whereas, worryingly subsequent renewals can be for up to three years.
There will be much more information about the Bill at our seminars, as there is so much more to discuss, and we remain hopeful that some changes will still be forthcoming as the Bill goes to committee stage in the House of Lords on 5 September. We will be keeping a close eye on its progress: find out more by reading the updates on our website under news, follow us on facebook or twitter or attending one of the free seminars.