In this ebriefing, we identify what we see as the key messages arising from recent prosecutions in the care and housing sectors.
What are the issues?
Frustration continues for care providers, individuals deprived of their liberty and their families, with the challenges of administering the Deprivation of Liberty Safeguards (“DoLS”). The provisions are intended to legally protect anyone in receipt of care and treatment deprived of their liberty, in a hospital or care home.
DoLS were described by the House of Lords Select Committee on the Mental Capacity Act 2005 (“MCA”) as “frequently not used…leaving individuals without the safeguards parliament intended” and ultimately “not fit for purpose”.
The situation is even more complex when a person is deprived of their liberty in another setting (their own home, supported living, extra care, shared lives schemes) or is under 18 years of age. In these circumstances, an application must be made to the Court of Protection for a court order authorising the arrangements.
The proposed solution
The Law Commission was tasked with undertaking a complete review of the relevant legislation, and the design of a scheme that is understandable, straightforward to administer, and provides meaningful benefit for the individual concerned, whilst not overburdening providers and statutory authorities with unnecessary bureaucracy and expense. The Commission published its report and a draft bill back in March 2017. The report set out 47 recommendations that covered not only deprivation of liberty, but also reforms to improve MCA decision-making in general. The draft bill replaced DoLS in their entirety, with a new scheme and a new name; Liberty Protection Safeguards ("LPS").
The Joint Committee on Human Rights then undertook an inquiry into the need for reform. Their report, published in June 2018, concluded:
“The Law Commission’s proposals could form the basis of a better scheme for authorising deprivations of liberty, directing scrutiny to those who need it most. That scheme should be implemented urgently”.
The new Mental Capacity (Amendment) Bill published earlier this week.
Explanatory notes will follow.
The Law Commissioner Nicholas Paines QC has said:
“This new legislation, based broadly on our recommendations, will go a long way towards addressing the flaws of the current system and better protect the most vulnerable in our society.”
However, it is clear to see that this bill is very much a watered-down version of the draft produced by the Commission, focusing solely on a new LPS scheme.
The key points
LPS will apply where a person:
- lacks capacity to consent to the arrangements;
- is not of sound mind; and
- the arrangements are necessary and proportionate.
The new LPS scheme is not limited to care homes and hospitals. It will apply to people being deprived of their liberty in their own homes, or in supported living, etc. (Individuals who are subject to “mental health arrangements”, being treated under the provisions of mental health legislation, are excluded from the scheme).
Responsibilities on care homes
In a care home, greater responsibilities are placed on the manager, as part of the LPS authorisation:
The manager must (inter alia):
- identify that the arrangements give rise to a deprivation of liberty;
- ensure a “pre-authorisation review” is carried out – by an IMCA if it appears the person does not wish to reside there, or is objecting to the care and treatment they are receiving;
- carry out a consultation with key individuals connected with the person;
- try and establish the cared-for person’s wishes and feelings;
- provide assessments confirming the person lacks capacity to consent to the arrangements, and is not of sound mind;
- determine that the arrangements are “necessary and proportionate”;
- prepare a draft authorisation record and deliver a statement confirming these issues to the relevant local authority (responsible authority).
In other non-hospital settings, such as the person’s own home, the responsible authority is responsible for these investigations.
Other key points:
- the scheme applies only to those aged 18 or over;
- the draft bill does not define “deprivation of liberty”;
- LPS authorisations can be renewed (initially for twelve months or less, and then subsequently for three years or less).
Local authorities will, no doubt, welcome the provisions in this draft bill. Where the person is in a care home, the authority would be able to offload a significant amount of preliminary investigation work to the management of the care home. If the person is in hospital, the hospital management is responsible for the scheme.
Care home managers may be left shaking their heads.
The first reading of the bill was in the House of Lords yesterday. This fledgling piece of legislation has a long way to go. It will face a great deal of scrutiny, amendments and then further scrutiny on its journey. It is far too early for care providers to “worry”. However, their representative bodies will wish to lobby and otherwise engage with the parliamentary process as opportunities arise, to ensure the eventual Mental Capacity (Amendment) Act does not impose an unfair burden on the sector.
If you have any questions about the issues raised in this article, get in touch with Sheree Green.
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