Article 5 of the European Convention on Human Rights (ECHR) prohibits arbitrary deprivation of liberty. Consequently, it is vital to have mechanisms to ensure that the arrangements made for vulnerable people who lack mental capacity are in their best interests. It is also important that resources are, as far as possible, directed to care rather than to legal and bureaucratic processes. This report seeks to advise the Government on how to address a serious problem that has emerged in these legal and bureaucratic processes.
The current Deprivation of Liberty Safeguards (DoLS) scheme safeguards against arbitrary detention of people who are deemed to lack capacity to consent to their care or treatment, such as older people living with dementia, people with autism and people with learning disabilities. However, the scheme is broken. The Supreme Court’s decision that a person is subject to “confinement” when “under continuous supervision and control” and “not free to leave” (the ‘acid test’), irrespective of their contentment, has resulted in a tenfold increase in the number of DoLS applications.
This has placed extreme pressure on Local Authority resources. Seventy percent of the almost 220,000 applications for DoLS authorisations in the past year were not authorised within the statutory time frame. Consequently, many incapacitated people continue to be deprived of their liberty unlawfully and those responsible for their care, or for obtaining authorisations, are having to work out how best to break the law.
At the Government’s request, the Law Commission has produced proposals for a new system of safeguards. The Commission proposes replacing DoLS with Liberty Protection Safeguards (LPS). LPS would authorise the specific arrangements that give rise to the deprivation of liberty. They are, therefore, more targeted than DoLS, which authorise the deprivation of liberty in general. LPS would apply to wider categories of people than DoLS, as they would extend to domestic settings, persons aged 16 and over, and persons of “unsound mind”. DoLS currently only apply to care homes and hospitals and over 18s with a mental disorder.
We support the principle that Article 5 safeguards should be applied to all those deprived of their liberty regardless of their care arrangements, but the potential expansion of the scheme into domestic settings runs the risk of creating an invasive scheme that is difficult to operate effectively. This highlights the importance of establishing more clearly the definition of “deprivation of liberty” so that such safeguards are applied to those who truly need them.
The Law Commission did not grapple with this difficult issue. We recognise that deprivation of liberty is an evolving Convention concept rooted in Article 5; the difficulty is how this is interpreted and applied in the context of mental incapacity. In our view, Parliament should provide a statutory definition of what constitutes a deprivation of liberty in the case of those who lack mental capacity in order to clarify the application of the Supreme Court’s acid test and to bring clarity for families and frontline professionals. Without such clarity there is a risk that the Law Commission’s proposals will become unworkable in the domestic sphere.
The Law Commission’s proposals for independent review of authorisations for deprivations of liberty are in our view compliant with the European Convention on Human Rights. It would be disproportionate to establish a separate review body. Nonetheless, we recommend that the Code of Practice must set out clear guidelines to deal with potential conflicts of interest.
The Law Commission’s proposals introduce 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. We consider that advance consent for care arrangements should be valid, as long as safeguards are in place to verify the validity of this consent.
The provision of advocacy helps to ensure that individuals can exercise their rights to challenge authorisations, as the advocate may initiate court proceedings. Unlike DoLS, which provided advocates on an ‘opt in’ basis, LPS provides advocates as of right. We support this enhancement of rights to advocacy. However, we recognize the shortage of advocates available and urge the Government to consider appropriate funding arrangements for adequate levels of advocates. We also suggest that an individual’s right to participate in court ought to be codified and that responsibility for securing the individual’s access to court should be prescribed clearly on the face of the Bill. Whilst the individual’s appropriate person and advocate should have a duty to appeal on behalf of the individual, the responsible body should be under a clear statutory duty to refer cases where others fail to do so, for example, when the individual objects or the arrangements are particularly intrusive.
The Law Commission proposes that the question of whether the Court of Protection (CoP) should retain jurisdiction to hear challenges or whether this should be transferred to the First Tier Tribunal (FTT) should be reviewed by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals. We consider that a tribunal system has serious merits for consideration.
At present, the Legal Aid Agency can refuse non-means tested certificates for challenges to DoLS where there is no existing authorisation. The current system has produced arbitrary limitations on the right of access to a court. Legal aid must be available for all eligible persons challenging their deprivation of liberty, regardless of whether an authorisation is in place, particularly given the vast number of people unlawfully deprived due to systemic delays and failures.
DoLS apply to those with a mental disorder. LPS will apply to persons of “unsound mind” to reflect the wording of Article 5. We recommend that further thought be given to replacing “unsound mind” with a medically and legally appropriate term and that a clear definition is set out in the Code of Practice.
The interface between the Mental Capacity Act (MCA) and the Mental Health Act (MHA) causes particular difficulties. Deciding which regime should apply is complex, and causes the courts and practitioners difficulties. The Law Commission proposes to maintain the two legal regimes: the MHA would apply to arrangements for mental disorders; the LPS would apply to arrangements for physical disorders. Inevitably, problems will continue to arise at the interface between these two regimes. We are particularly concerned by two issues. Firstly, this proposal requires 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, we are concerned that there would be essentially different laws and different rights for people lacking capacity depending upon whether their disorder is mental or physical. We consider that the rights of persons lacking capacity should be the same irrespective of whether they have mental or physical disorders.
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. However, while it should be cheaper than the application of the current DoLS to all those falling within the Cheshire West definition, it is not cost free. We urge the Government to consider how this new scheme might be appropriately funded.
1 Cheshire West and Chester Council v P  UKSC 19,  MHLO 16
2 NHS Digital, Mental Capacity Act (2005) Deprivation of Liberty Safeguards (England) 2016/17, Statistics,
Published: 29 June 2018