1Introduction
Overview
1.Article 5 of the European Convention on Human Rights (ECHR) prohibits arbitrary deprivation of liberty. This applies to everyone equally, including those who lack mental capacity. It is important 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. In 2014, the House of Lords Select Committee on the Mental Capacity Act criticised the current system for authorising deprivations of liberty as being bureaucratic and burdensome. That same year, the Supreme Court’s judgment in Cheshire West extended the requirement for authorisation of deprivations of liberty to a wider group of people thereby increasing the problem.
2.Consequently, at the Government’s request, the Law Commission has produced proposals for a new system of safeguards—the Liberty Protection Safeguards (LPS). This report looks at those proposals and makes recommendations regarding their implementation. We consider that the Government and Parliament now need to act swiftly to ensure that there is a system which protects those at risk from unlawful deprivations of liberty whilst ensuring resources are concentrated on care rather than process.
3.In considering this issue, we bear in mind the evidence we have heard from carers, academics and lawyers alike, that the most important objective is to “deliver the right care that properly meets the interests of the individuals concerned.”3 Dr Lucy Series reminded us that “at the root of all this is a very human question about the power that, often indirectly, the Mental Capacity Act hands to the health and social care professionals to make life-changing decisions about disabled people.”4 Individuals and their rights lie at the heart of this inquiry.
What is the problem?
4.The Deprivation of Liberty Safeguards (DoLS) scheme, set out in the Mental Capacity Act 2005 (MCA), safeguards against arbitrary detention for people who are deemed to lack capacity to consent to their care or treatment.
5.DoLS are commonly applied to older people living with dementia, people with autism and people with learning disabilities. They may also apply in some medical settings, for example in cases of brain injury. DoLS aim to ensure that people are only deprived of their liberty when it is in their best interests and where there is no other less restrictive way to provide necessary care and treatment.
6.DoLS set out the process for authorising a deprivation of liberty of someone in a care home or hospital setting who lacks mental capacity. The care home or hospital must make a request to the relevant supervisory body (the Local Authority or Welsh Health Board) which in turn must arrange a series of six assessments, including ones to assess mental capacity and to ascertain whether the proposed deprivation is in the individual’s best interests. An authorisation will be granted if the requirements are all met.5
7.The person deprived of liberty must have a representative appointed with legal powers to represent them, usually a family member or friend. Other safeguards provided under the DoLS include the right to challenge authorisations in the Court of Protection and access to Independent Mental Capacity Advocates (IMCAs).
8.However, there is consensus that this scheme is broken and, as a result, thousands of people are being unlawfully detained. There were 217,000 applications for DoLS authorisations in the past year (2017),6 about three times more than the number of people detained under the Mental Health Act.7 The vast majority of these applications are not authorised within the time frame of 21 days set out in the Deprivation of Liberty Safeguards Code of Practice.8 Currently, 70% of applications do not meet this time limit, with 10% taking more than one year.9 Deprivation of liberty without lawful authority violates Article 5 of the European Convention on Human Rights (ECHR), which protects the right to liberty and security of the person. This means that those responsible for care and treatment are having to work out how best to break the law.10
Why has this problem arisen?
9.In 2014, a House of Lords Select Committee on the Mental Capacity Act found that the DoLS system was unfit for purpose. In particular, they found that “the provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act […] Worse still, far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned.”11
10.In the same year, in the case of Cheshire West, the Supreme Court had to decide when a person is deprived of their liberty in the context of social care. The MCA states that deprivation of liberty has the same meaning as Article 5(1) ECHR,12 which has been defined by the European Court of Human Rights as (1) confinement for a not negligible period of time; (2) lack of valid consent; (3) where the State is responsible.13 There was, however, no statutory guidance as to what Parliament considered would in practice constitute a deprivation of liberty.
11.The Supreme Court considered Strasbourg case law, although they noted there was no precise precedent in the context of social care. They 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”,14 to be determined “primarily on an objective basis”.15 It did not matter whether the individuals in this case were content or compliant. As Lady Hale said, “a gilded cage is still a cage.”16 This judgment set the ‘acid test’ for determining when a person is deprived of their liberty.
12.The judgment resulted in a tenfold increase in the number of DoLS applications being made in recent years. As explained by Stephen Chandler from the Association of Directors of Adult Social Services, following Cheshire West, “the law now said that a number of groups of individuals needed to be considered in the context of the Mental Capacity Act. That included many people who were in long-term stable care arrangements and for whom the process of going through the Mental Capacity Act would make little or no difference to the way their care and support was arranged day to day.”17 Nicholas Paines QC of the Law Commission opined that “an already unfit for purpose system was suddenly loaded with a manifold increase in cases.”18
13.Local authorities have struggled to cope with the resource implications of the judgment and a very large backlog of cases has built up. We heard evidence from Stephen Chandler that “prior to the Cheshire West decision, we were meeting the majority of referrals, but the exponential increase in referrals following the Cheshire West case has meant that local authorities are not able to meet the increased demand.”19 As a result, many people are currently deprived of their liberty without any lawful authorisation: the most recent statistics indicate 100,000 may be affected.20
What is the way forward?
14.There is broad agreement that the system should be reformed–the question is how and when. In 2014, the Law Commission was asked by the Government to review the Mental Capacity Act. In 2017, the Law Commission put forward proposals to reform DoLS and produced a draft Bill.21 Their proposals are “designed to cope with the increased number of people considered to be deprived of their liberty following Cheshire West, to be less bureaucratic and complex than DoLS and to provide improved safeguards at lower cost.”22 The intention of our inquiry was to consider the Law Commission’s proposals and make recommendations as to the Government’s next steps. In particular, we wanted to scrutinise the draft Bill proposed by the Law Commission and consider its compliance with human rights law.
15.In doing so, we are acutely aware of the resource implications of the current system and the proposals. The Law Commission estimates that full implementation of the current system would cost £2billion per year while full implementation of their proposals would require £200million, although this is contested.23
16.Whilst the Government has broadly accepted the Law Commission’s proposals, their official response stated that they will deal with this “when Parliamentary time allows”.24 We consider that reform is needed urgently. Although we recognise the proposals are not a panacea, the evidence we have received, for the most part, indicates that they will help to improve the situation. The Law Commission’s proposals should be implemented as quickly as possible, subject to further consideration on a few key issues discussed below.
5 The steps for authorising DoLS are as follows: 1. Capacity assessment; 2. Mental Disorder assessment; 3. Best interests assessment; 4. No refusals assessment (arrangements must not conflict with a valid decision of a donee of a lasting power of attorney or a court appointed deputy); 5. Eligibility assessment (e.g. an individual will be ineligible for DoLS if they are objecting to psychiatric treatment for a mental disorder); 6. Age assessment; 7. Authorised by a signatory. See Schedule 1A, MCA 2005
8 Deprivation of Liberty Safeguards, Mental Capacity Act 2005, Code of Practice
9 Annual statistics released in November 2017 show that there were 217,235 applications for DoLS received during 2016/17; an increase of 11 per cent on 2015/16. The backlog of cases increased by 7 per cent to 108,545 and the number of applications not completed that had been waiting more than one year as at 31 March 2017 was 29,585; an increase of 68 per cent on the previous year. Source: NHS Digital, Mental Capacity Act (2005) Deprivation of Liberty Safeguards (England) 2016/17, Statistics, 1 November 2017
11 House of Lords, Report of the Select Committee on the Mental Capacity Act 2005: Post-Legislative Scrutiny, Session 2013–14, HL Paper 139, p 7
12 Mental Capacity Act 2005, Section 64(5)
13 Storck v Germany (Application No. 61603/00) at para 74; Stanev v Bulgaria (Application No. 36760/06) at para 117
14 Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16, paras 49, 63 and 87
15 Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16, paras 76–87
16 Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16, para 46
20 Mental Capacity Act 2005, Deprivation of Liberty Safeguards, (England), 2016–17, Official Statistics
23 Mental Capacity and Detention - Law Commission, Impact assessment, 13 March 2017
24 Government Response to the Law Commission’s review of Deprivation of Liberty Safeguards and Mental Capacity, 14 March 2018
Published: 29 June 2018