Mental Capacity and Deprivation of Liberty – an update on reform

Caroline Cooke is Policy Manager at BGS and Premila Fade is BGS’s End of Life Care Lead.  Here they explain the background to, and significance of, the report published by the Law Commission, “Mental Capacity and Deprivation of Liberty” on 17 March 2017.

What are DoLS?  The Deprivation of Liberty Safeguards (DoLS) are a set of protections for adults who lack the mental capacity to consent to deprivation of their liberty by, for example, admission either to hospital or a care home for treatment or care.  They were introduced as part of the Mental Health Act 2007.  The intention behind their introduction was to ensure that no-one is deprived of liberty without good reason, and the right of legal challenge is built into the authorisation process.  The idea was to close the so called ‘Bournewood gap’ whereby adults admitted informally (i.e. not via the Mental Health Act) did not have an automatic right to appeal.  The European Court of Human Rights (HL v United Kingdom) ruled that this lack of safeguards was a breach of article 5 ‘The right to Liberty’ of the Human Rights Act.

Why have they been reviewed?  In practice there have been difficulties from the outset.  In 2014 the House of Lords Select Committee on the Mental Capacity Act concluded that the legislation was not fit for purpose and should be replaced.  The need for replacement legislation became more urgent when, also in 2014, a decision by the Supreme Court – the “Cheshire West” decision – increased the number of people who need to be recognised as being deprived of liberty[i] to include every adult who is not able to consent to restriction of their liberty – regardless of whether that person or their family/friends object.  This resulted in extra pressure on hospitals and local authorities who currently have to apply for urgent authorisation within tight timescales, which means that sometimes the legal protections are not in place.  The consequence is that many people (100,000 last year), whose deprivation of liberty must be properly authorised so that it is lawful and their rights are upheld, are missing out because the proper process is not being followed.

What stage is the review at? The Department of Health asked the Law Commission to review the legal framework to ensure suitable protections are in place.  In 2015 the Law Commission carried out a public consultation, to which BGS responded.  In our response we agreed that the current DoLS are unfit for purpose and should be replaced by a new system of protective care.  A copy of our full response is available from: http://www.bgs.org.uk/policy-digest-m/resources/policy-digest/bgs-consultation-dols  Following this consultation, in May 2016, the Law Commission published an interim statement in which they concluded that “legislative change is the only satisfactory solution to the problems”.

What does the Law Commission propose?  The Law Commission has been developing proposals which are set out in their report and draft bill  http://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/  The report recommends replacing the law with a new scheme called the Liberty Protection Safeguards.  In essence the proposals would mean:

  • enhanced rights to advocacy, and greater weight given to the person’s wishes and feelings when making decisions about deprivation of liberty
  • a responsibility to consult with those who care for the person and anyone else interested in their welfare
  • statutory authority to allow for deprivation of liberty to enable life sustaining treatment or prevent serious deterioration in the person’s condition.
  • greater focus on whether a deprivation of liberty is necessary and proportionate, rather than in the person’s best interests, as it is recognised that local authorities and the NHS cannot be compelled to fund the best possible care, however the proposed arrangements must be a proportionate response to the risk of harm
  • allowing for authorisation to move with the person between care settings
  • extended protections to cover all care settings such as supported living – which would remove the need for costly applications to the Court of Protection
  • cutting unnecessary duplication
  • extending who is responsible for giving authorisation to the NHS if the decision applies to a hospital or NHES health care setting
  • independent review of all assessments and enhanced protection where there is any disagreement about where the person should reside or receive treatment, via a second independent assessment from an approved mental capacity professional
  • removal of the duty to hold an inquest when a person dies whilst under a DoLs authorisation (already implemented on 3 April via Policing and Crime Act 2017)

What are the next steps? The publication of the report concludes the review by the Law Commission.  The next step is for Government to respond and indicate whether it accepts the recommendations.  If they are accepted then the draft Bill would be published, and parliamentary time will be required for the bill to be debated, and if it is the will of Parliament, enacted.  For the time being the existing system must still be followed.

How can you get involved?  If Government accepts the Law Commission’s report and a Bill goes before Parliament it would be useful for BGS to be able to draw on evidence and case studies based on the experience of our members.  If you have been involved in the application of DoLS please do share your experiences, either by responding to this blog, or by contacting Caroline Cooke policy@bgs.org.uk.

[i] (P v Cheshire West and Chester Council and P and Q v Surry County Council (2014) UKSC 19

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