Society needs robust mechanisms to protect the human rights of vulnerable people, in particular their right not to be detained arbitrarily. A new scheme to provide the legal safeguards required by Article 5 of the European Convention on Human Rights (ECHR) is urgently required; the current Deprivation of Liberty Safeguards (DoLS) scheme is irrevocably broken, as we said in our report The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards.
In the case of Cheshire West, the Supreme Court decided that the “acid test” for deprivation of liberty is whether a person is under continuous supervision and control and not free to leave, regardless of whether they are content or compliant. Following this judgment, the breadth of this test has meant that as many as 125,630 people are currently unlawfully deprived of their liberty, in breach of Article 5 ECHR. Extending the existing scheme to all those caught by this definition could cost £2bn a year.
The Government has brought forward the Mental Capacity (Amendment) Bill in an attempt to resolve the crisis. The Bill follows the Law Commission’s proposals for a scheme of Liberty Protection Safeguards (LPS), but differs from the proposals in a number of respects.
Most significantly for those living in care homes, responsibility for arranging the assessments required before a deprivation of liberty can be authorised would in future fall to care home managers. The Government has asserted that its proposals provide the assessment process with the degree of independence required by case law relating to Article 5 of the ECHR. We share concerns expressed by stakeholders that, in practice, care home managers will face conflicts of interest that will seriously hinder their ability to make objective assessments.
These concerns are heightened by the fact that the care home manager would be tasked not only with arranging assessments but also with determining whether the cared-for person should have access to either an Approved Mental Capacity Professional (who conducts a more in-depth review) and/or an independent advocate. Both these roles provide important safeguards of the individuals’ rights under Article 5 and decisions about who requires them should be made independently. We propose amendments to the Bill to enhance these safeguards.
Many of those caught by the Cheshire West definition are not perceived by their family or professional carers as being ‘deprived of their liberty’. The Committee repeats its call for Parliament to consider including in the legislation a definition of deprivation of liberty in the context of mental capacity law to clarify the application of the Supreme Court’s “acid test”, whilst being mindful of the fact that any definition must comply with Article 5.
A definition on the face of the Bill is important to give cared-for people, their families and professionals greater certainty about the parameters of the scheme and to direct scrutiny and the necessary resources to where it is needed. It is undeniable that any definition in statute may be refined by future case law but, in our view, it is not possible to design and implement an effective system of safeguards without having a clear sense of the scope of such a system.
1 Joint Committee on Human Rights, Seventh Report of Session 2017–19, , HC 890 / HL Paper 161
2 Cheshire West and Chester Council v P  UKSC 19,  MHLO 16
3 Health and Social Care Information Centre Report, , 2 October 2018
4 Law Commission, , HC 1079
Published: 26 October 2018