1Introduction
Background to the Bill
1.The Mental Capacity (Amendment) Bill (the Bill) seeks to amend the Mental Capacity Act 2005 (MCA) and introduce a new scheme, the Liberty Protection Safeguards (LPS), to replace the Deprivation of Liberty Safeguards (DoLS).5 This scheme is intended to provide the legal safeguards required by Article 5 of the European Convention on Human Rights (ECHR) for people who are considered to lack the mental capacity to consent to their care and treatment arrangements, and who are considered in law to be deprived of their liberty.
2.As set out in our report, ‘The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards’,6 a new scheme is urgently required. The current DoLS scheme is irrevocably broken. Ever since its inception, the scheme has been widely criticised for being overly bureaucratic and burdensome. In 2014 the Supreme Court in Cheshire West decided (by a majority) that a person is subject to “confinement” when the person concerned is “under continuous supervision and control” and “not free to leave”, to be determined “primarily on an objective basis”.7 It did not matter whether the individuals in this case were content or compliant. Following this judgment, the requirement for authorisation of deprivations of liberty has applied to a far wider group of people than originally envisaged. Consequently, this means a backlog of over 125,630 cases has built up in the DoLS system.8 As the law stands, these people are currently unlawfully detained.
3.In 2017, at the Government’s request, the Law Commission produced proposals for a new system of safeguards that were intended to establish a proportionate and less bureaucratic means of authorising deprivation of liberty.9 The Government responded to that report in March 2018 accepting that the current DoLS system should be replaced, and broadly agreeing with the model set out in the Commission’s draft Bill.10
4.In our previous report, we examined the Law Commission’s proposals and concluded that they could form the basis of an improved scheme for authorising deprivations of liberty, directing scrutiny to those who need it most. We noted that the Law Commission’s proposals did not address the definition of deprivation of liberty made in Cheshire West. Our conclusions were:
a)The Government should consider establishing more clearly the definition of deprivation of liberty in order to clarify the application of the Supreme Court’s “acid test” and to bring clarity for families and frontline professionals.
b)The Law Commission’s proposals for independent review of authorisations for deprivations of liberty within the responsible body were compliant with the European Convention on Human Rights and it would be disproportionate to establish a separate review body. Nonetheless, the Code of Practice for those undertaking authorisations must set out clear guidelines to deal with potential conflicts of interest.
c)The Law Commission’s proposals introduced the possibility of providing advance consent to care and treatment arrangements that would otherwise amount to a deprivation of liberty. This is not currently possible under the DoLS scheme. Advance consent for care arrangements should be valid, as long as safeguards were in place to verify the validity of this consent.
d)We endorsed the enhancement of rights to an independent advocate proposed by the Law Commission. However, we noted the shortage of advocates and recommended the Government should consider appropriate funding arrangements for adequate numbers of advocates. An individual’s right to participate in court ought to be contained in statute and responsibility for securing the individual’s access to court should be prescribed clearly on the face of the Bill.
e)The Law Commission proposed that the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals should review whether the Court of Protection (CoP) should retain jurisdiction to hear challenges or whether this should be transferred to the First Tier Tribunal (FTT). We suggested a tribunal system had serious merits for consideration.
f)Legal aid must be available for all eligible persons to challenge their deprivation of liberty, regardless of whether an authorisation was in place.
g)The Law Commission proposed that the LPS would apply to persons of “unsound mind” to reflect the wording of Article 5. Further thought should be given to replacing “unsound mind” with a medically and legally appropriate term and a clear definition should be set out in the Code of Practice.
h)The interface between the Mental Capacity Act (MCA) and the Mental Health Act (MHA) caused particular difficulties. The Law Commission proposed maintaining the two legal regimes: the MHA would apply to arrangements for mental disorders; the LPS would apply to arrangements for physical disorders. We had two concerns. Firstly, this proposal would require assessors to determine the primary purpose of the assessment or treatment of a mental or physical disorder–this is difficult where persons have multiple disorders. Secondly, there would be essentially different laws and different rights for people lacking capacity depending upon whether their disorder is mental or physical.
5.The Bill that is now being considered by the House of Lords departs from the Law Commission’s proposals in several significant respects and does not include a definition of deprivation of liberty. This further report examines some of the key elements of the Bill and makes recommendations for amendments to it.
Overview of the Bill
6.The Bill amends the MCA. It inserts a new Schedule AA1 which would provide for a new administrative scheme for the authorisation of arrangements enabling care or treatment of a person who lacks capacity to consent to the arrangements, which give rise to a deprivation of that person’s liberty (the ‘Liberty Protection Safeguards’). Under Schedule AA1, a responsible body would be able to authorise arrangements for care and treatment giving rise to a deprivation of a person’s liberty in any setting.11
7.Under the Bill, before a responsible body can authorise such arrangements, it must be satisfied that three authorisation conditions are met:
i)the person who is the subject of the arrangements lacks the capacity to consent to the arrangements;
ii)the person is of unsound mind; and
iii)the arrangements are necessary and proportionate.12
8.A person who is not involved in the day-to-day care of, or in providing any treatment to, the person would also have to carry out a pre-authorisation review to determine whether it is reasonable for the responsible body to conclude that the authorisation conditions are met. In cases where the person is objecting to the proposed arrangements, an Approved Mental Capacity Professional (AMCP) must carry out the pre-authorisation review.13
9.The Schedule provides a number of safeguards after an authorisation has been given. These include regular reviews of the authorisation by the responsible body or care home and the right to challenge the authorisation before the Court of Protection.14 Schedule AA1 would further place a duty on each responsible body to appoint an Independent Mental Capacity Advocate (IMCA) or an appropriate person to represent and support the person when an authorisation is being proposed and while an authorisation is in place.15
10.With regard to the relationship between the Liberty Protection Safeguards scheme and the Mental Health Act 1983, in broad terms, patients who are detained under the Mental Health Act 1983 or who are objecting to their treatment, would not be made subject to an authorisation under Schedule AA1. However, the Explanatory Notes state that a person not detained under the MHA could be subject to an authorisation under Schedule AA1 and subject to Mental Health Act requirements, so long as the authorisation does not conflict with those requirements.16
5 The Bill was introduced in the Lords on 3 July 2018 and had second reading on 16 July 2018.
6 Joint Committee on Human Rights, Seventh Report of Session 2017–19, The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards, HC 890 / HL Paper 161
7 Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16
8 Health and Social Care Information Centre Report, Mental Capacity Act 2005, Deprivation of Liberty Safeguards, England, 2017–18, 2 October 2018
9 Law Commission, Mental Capacity and Deprivation of Liberty, HC 1079
10 Government Response to the Law Commission’s review of Deprivation of Liberty Safeguards and Mental Capacity, 14 March 2018
11 A responsible body is either a hospital manager, a clinical commissioning group, Local Health Board, or the local authority depending on the circumstances. See Mental Capacity (Amendment) Bill [HL], [Bill 117 (2017–19)], Schedule 1, para 6
12 Mental Capacity (Amendment) Bill [HL], Schedule 1, Part 2, para 11
13 The Secretary of State will set out in regulations the criteria for Approved Mental Capacity Professionals, Mental Capacity (Amendment) Bill [HL], Part 4, para 33
14 Mental Capacity (Amendment) Bill [HL], Schedule 1, para 31; clause 3
15 An appropriate person is a person who is suitable to represent and support the cared-for person, consents to doing so, and is not engaged in providing care or treatment for the cared-for person in a professional capacity. See Mental Capacity (Amendment) Bill [HL], Schedule 1, Part 5, para 36(5)
16 Explanatory Notes to the Mental Capacity (Amendment) Bill [HL], [Bill 117 (2017–19) –EN]
Published: 26 October 2018