Could have been worse?
1. The Mental Capacity (Amendment) Act 2019 replaces DoLS and the Court of Protection equivalent. It cherry picks bits of the Law Commission’s (‘Commission’) 2017 proposal but fundamentally departs from it in many respects. That proposal derived from 83 nationwide events and 583 written responses from interested persons and organisations. But the provisions of the 2019 Act are very different.
2. The Act retains the language of “deprivation of liberty” and “authorisations”. Many dislike the former term. But, to be fair, the difficulty in not referring to it is that the law needs to be sufficiently explicit in what it is dealing with where Article 5 is concerned. The proposed colloquial name is “liberty protection safeguards” rather than “deprivation of liberty safeguards” which is an improvement. But including “protection” risks care providers being unduly risk-averse, so perhaps “liberty safeguards” might have better captured the true essence of what the Act aims to achieve.
3. The current “detained resident” will become the “cared-for person” whose current “place of detention” will become a “particular place”. The “relevant person’s representative” will become their “appropriate person” or IMCA. And the current "supervisory body" will become the "responsible body", of which there are 3.
Scope of LPS
4. Similar to DoLS, LPS does not apply to the direct delivery of the care and treatment as this is covered by MCA ss5-6. LPS is very much a one-size-fits-all approach. It applies to deprivations of liberty occurring anywhere, including hospitals, care homes, supported living and shared lives schemes, domestic and private settings for those aged 16 and over.
5. DoLS focuses on what happens in a place of detention. Whereas the Act adopts the Law Commission’s focus on “the arrangements” giving rise to the deprivation of liberty. Those arrangements could relate, for example, to residing or receiving care in or at “a particular place”, or the means and manner of transporting the person.
6. The Act does not therefore say so explicitly but, according to its explanatory notes "it is intended that, where different types of arrangements have been included in the authorisation, the record can travel with them between different settings" (para 57). Whether this makes the DOL authorisation portable remains to be seen as, for example, different responsible bodies deal with care homes and NHS hospitals. Moreover, the intensity of restrictions in the residential side of a care home can be very different to the nursing side of the same care home.
The LPS trigger
7. “Deprivation of liberty” is retained as the trigger for safeguards with no statutory definition. The threshold will continue to be governed by case law and, ultimately, the Strasbourg Court (yes, even since leaving the EU!). The evidence given to the JCHR showed a lack of consensus as to whether Parliament should define the term. But the lack of statutory definition should come as no surprise given that any hope of legal certainty in borderline cases is little more than a search for the philosopher’s stone. Moreover, a statutory definition would have been pointless because any legislation would have to be construed by the courts so as to comply with Article 5. Parliament would have to provide a trigger that was pitched below the Article 5 threshold so as to avoid otherwise unlawful deprivations of liberty. The judiciary are likely to continue to err on the side of caution, keeping the bar low, and more case law seems likely, particularly in relation to domestic and private settings where further guidance will be needed.
Responsibility for securing the safeguards
8. The Act provides a slightly different process, depending on whether the liberty deprivation is in a care home or not. According to the government, the reason for the difference is to “incentivise the ownership of mental capacity and deprivation of liberty within all care providers and workforce”. And “the opportunity to ensure that the workforce plays a full role in the care and treatment of people, and any associated deprivation of liberty, is too important to miss”. To consider the DOL issues at the point of care planning “tackles a major shortfall of the current system”.
9. The aim is laudable. After all, there is concern that Article 5 (not to mention the MCA generally) is not that well embedded in day-to-day care planning. But this radical change from the Commission’s proposal is causing concern. Moreover, it is not clear why care homes have been singled out. If the aim is to better embed the law within all care providers, why have a separate procedure for just care homes?
Care homes10. The responsible body has a discretion in care home cases to ask the care home manager to undertake a more pro-active role in organising matters. Thus, a care home manager will be required to provide a statement to the responsible body that:
(a) The person is 18 or over;
(b) The arrangements give rise to a deprivation of liberty (with reasons);
(c) The arrangements are not excluded by the MHA provisions;
(d) The cared-for person has been determined to lack the relevant capacity, has mental disorder, and the arrangements are necessary and proportionate;
(e) They have carried out the necessary consultation;
(f) Appropriate person and/or advocacy requirements have been carried out;
(g) Whether the person does/not wish to reside or receive care/treatment (with reasons).
11. The manager, rather than the responsible body, can be asked to organise what is necessary to achieve (a)-(g). S/he would then arrange the assessments for the criteria for detention. S/he consults necessary consultees and secures LPS representation/advocacy. S/he identifies whether the person wishes or not to be there or to receive care/treatment there. It will be interesting to see whether responsible bodies will exercise this discretion and, indeed, whether care home managers are going to be willing and able to meet these significant expectations. The half-day training estimate for managers is beyond optimistic.
12. Accompanying the care home manager’s statement must be a record of the capacity, mental disorder, and necessity/proportionality assessments, evidence of the consultation undertaken, and a pre-prepared draft authorisation record which specifies all arrangements seeking authorisation, the length of authorisation sought, a programme for its review, details as to how the appropriate person/advocacy provisions have been complied with, anything else LPS requires to be specified, and any other information.
13. An independent reviewer who is not involved in the cared-for person’s day-to-day care/treatment will conduct a pre-authorisation review, but the adequacy of what is likely to be a desktop exercise is open to doubt. The review involves reading the care home manager’s statement, the information on which it relies, and determining whether it is reasonable for the local authority/CCG to conclude that the authorisation conditions are met. It is perhaps akin to the current role of the DoLS authoriser. It is a form of independent scrutiny but it is far removed from what is happening on the ground. It is very different to securing independence in the assessment of the detention criteria.
Places other than care homes14. The procedure here is very similar, except that it is the responsible body – rather than a care home manager – that will be organising what is necessary to evidence (a)-(g) above. So either an NHS hospital manager, a CCG/Local Health Board, or a local authority will do this. Similar concerns arise here in terms of the lack of independence in the assessment process.
Approved mental capacity professionals15. This is a new role but is based upon that of the current best interests assessor. The AMCP is a key safeguard as they will undertake independent scrutiny and can veto the proposed arrangements. The Act requires local authorities to make arrangements for AMCPs to be approved and to ensure there are enough of them in their area. The Law Commission proposed that AMCPs would be acting on behalf of local authorities (similar to AMHPs and the MHA s.114(10)). But the Act does not say either way. If AMCPs are not required to act on behalf of local authorities, this may provide scope for independent AMCPs to operate without having to be employed by local authorities. Nor is there any requirement (as contained in the Law Commission’s proposal) for local authorities to appoint someone to manage the conduct and performance of AMCPs. And there is no requirement for those managers to report to the director of adult social services etc. According to the government's letter, “Internal governance arrangements are a matter for local authorities, but we intend to provide guidance to assist them in the Code of Practice”.
18. The AMCP will become the independent reviewer of the authorisation conditions if “it is reasonable to believe” that the cared-for person does not wish to reside or receive care/treatment at a particular place. In short, going against the person's wishes will trigger AMCP involvement. The AMCP must meet with the person if it appears to the AMCP to be appropriate and practicable to do so. And AMCPs must consult with anyone named by the cared-for person, those engaged in their care or interested in their welfare, any LPA/EPA, deputy, and any appropriate person and any IMCA. They can also take any appropriate action to make the determination.
19. The evidence to the JCHR said that limiting access to the skills and knowledge of the AMCP to only those who object runs the risk of removing the universality of access to human rights. And it was suggested that for many people the involvement of an independent professional with the power to achieve a speedy resolution would be more valuable than a largely theoretical right of appeal to a court.
Safeguards before, not after20. What is welcome is the emphasis on securing safeguards before the deprivation of liberty begins; hence this being a "pre-authorisation" review. A potential deprivation of someone’s liberty certainly needs to be identified and authorisation sought at the point when a care provider is determining whether it feels able to meet a person’s needs. Not months after P was first deprived of liberty. The JCHR evidence showed a keenness to ensure safeguards beforehand, similar to the timing of safeguards for children coming in to local authority care. LPS achieves this. But so too – on paper – does DoLS; yet, in practice, rarely is DoLS secured in advance.
21. LPS in facts waters down the current requirements and gives rise to potential Article 5 concerns. Currently, a DoLS authorisation can be requested up to 28 days before the detention is due to begin, with all 6 assessments having to be completed within 21 days. Under LPS there must similarly be pre-authorisation by the responsible body but there are no legislative timescales for completing the assessments. Instead the new MCA s.4B (which principally replaces urgent DoLS authorisations) authorises D to take steps which deprive P of liberty if that is necessary for life-sustaining treatment or to prevent a serious deterioration in P’s condition (a “vital act”) in any of these circumstances:
(a) If a decision is being sought from the court (with no timescale); or
(b) Whilst the responsible body is carrying out the LPS functions to determine whether to authorise (with no timescale); or
(c) There is an emergency (with no timescale).
22. Contrast this with DoLS where urgent authorisations can last for up to 7 days, during which all assessments must be completed, extendable by a further 7 if there are exceptional circumstances. The lack of statutory timescales give rise to a very real risk of arbitrary detention, contrary to Article 5. For the European Court’s decision in HL v UK (the ‘Bournewood case’) was clear there must be a “formalised admission procedure” and warned against there being “no limits in terms of time” attached to a deprivation of liberty. A procedure prescribed by law requires timescales otherwise arbitrary “interim” detention results. In my view, s.4B is potentially open to abuse. Moreover, where does this leave those Ds with Ps who need to be deprived of liberty but not to prevent a serious deterioration in their condition? Where the deprivation is merely necessary and proportionate?
23. The Act’s provisions are somewhat confusing in this regard. An IMCA is required if the cared-for person:
(a) has capacity to consent to being represented and supported by an IMCA and requests one; or
(b) lacks such capacity but the responsible body is satisfied that being represented and supported by an IMCA is in cared-for person’s best interests.
24. But there is no IMCA requirement if the responsible body is satisfied that there is an “appropriate person” (eg family member, friend etc). A person is not appropriate unless they are suitable “to represent and support the cared-for person”, consent to so acting, and are not engaged in providing care/treatment in a professional capacity. And they will not be appropriate if the cared-for person has capacity and does not consent to them acting or the cared-for person lacks capacity and it is not in their best interests.
25. Pausing there, this raises a host of issues including:
- If there is no appropriate person and P lacks ‘representation capacity’, will it automatically be in their best interests to have an IMCA or is there still a discretion not to instruct one?
- Is it appropriate for responsible bodies to be using a best interests approach to IMCA involvement? It could leave representation (or lack thereof) open to abuse.
- What form of representation and support does the appropriate person or IMCA provide? Does it go beyond the role of the current DoLS representative? Is it confined to LPS matters?
- What does “professional capacity” mean? The Commission’s proposal also referred to “for remuneration”. For example, could a shared lives carer be an appropriate person or do they act in a professional capacity which would render them unsuitable? What about a Care Act advocate?
26. The responsible body must take all reasonable steps to appoint an IMCA to support the appropriate person (as opposed to the cared-for person) if either (a) that person has capacity to consent to being so supported and requests an IMCA, or (b) that person lacks such capacity but IMCA support for the appropriate person is in the “cared-for person’s best interests”. This seems to be a role similar to the current s.39D IMCA role under DoLS. But it raises all sorts of issues. First, if the appropriate person lacks ‘IMCA support capacity’, are they an appropriate person for the cared-for person? Second, the focus on capacity and best interests throughout these advocacy provisions risks significant uncertainty and could be open to abuse as the authoriser of detention is considering whether it is in the best interests of the person detained to have an independent advocate to challenge the detainer.
The authorisation conditions27. LPS replaces DoLS’ 6 conditions (18+, incapacity, mental disorder, no refusals, eligibility, best interests consisting of DOL, best interests, necessity and proportionality) with just 3 conditions (incapacity, mental disorder, necessity and proportionality). Before examining them, there is a striking lack of detail in the Act regarding the assessors. Such detail no doubt will be in the Regulations or the Code of Practice, but unlike the Commission’s proposal, the Act itself does not even require more than one assessor. And, notice, the absence of the best interests assessment.
28. The government's letter agrees that “assessments should be completed by at least two assessors. We will outline how assessments will work operationally in the Code of Practice.” Who will they be? What qualifications will be needed? And (as required in the Commission’s proposal) will the assessors be independent from each other? According to the letter, “The Code of Practice will set out the appropriate skills and qualifications for those carrying out these assessments. With regards to capacity assessments we want to ensure that all relevant health and care workers can play a role where appropriate.” Relegating important detention detail to a Code of Practice is attractive in terms of providing flexibility and enabling changes to be comparatively easily made. But it is risky in Article 5 terms because a Code can be departed from where there are cogent (documented) reasons for doing so. And this could give rise to a risk of arbitrariness.
Mental incapacity29. This considers whether the cared-for person “lacks capacity to consent to the arrangements”. The “arrangements” are those for enabling care or treatment that give rise to a deprivation of liberty. Focusing on “consent” is interesting as it subtly implies that consenting to, rather than refusing, the arrangements is called for. A more neutral term might have been “lacks capacity to decide whether to receive the arrangements”. Fluctuating capacity is also said to be addressed in the Code.
30. There is nothing in the Act to identify who should assess this. But this condition comes under a heading referring to “medical assessments” which suggests it will be a medic. In Article 5, a finding of unsound mind requires objective medical expertise, such as a psychiatrist or general practitioner. And in domestic law it could also come from a psychologist. Whether GPs will be willing and able to undertake the medical assessment may be a key issue in the implementation of LPS.
Necessary and proportionate31. The condition considers whether the “arrangements are necessary to prevent harm to the cared-for person and proportionate in relation to the likelihood and seriousness of harm to the cared-for person.” Regard must be had here (amongst other matters) to the cared-for person’s wishes and feelings in relation to the arrangements. But who will assess this? And, presumably, "harm" may be broadly interpreted.
The Authorisation32. The authorisations can last up to 1 year, renewed for up to 1 year, and then renewed for up to 3 years. Could it be possible therefore to have, say, a one-month authorisation, renewed for one month, and then renewed for 3 years? If so, that would be open to abuse and leave the person without assessments for a lengthy period. However, the authorisation specifies a programme for “regular reviews” which are done either by the care home manager or the responsible body. Importantly, aside from variations, other review triggers include a reasonable request made by a person with an interest in the arrangements, if the cared-for person becomes subject to the MHA, or the reviewer becomes aware of a significant change in the person’s condition or circumstances. Importantly there must also be a review if there was no AMCP pre-authorisation involvement and the reviewer becomes aware that the cared-for person does not wish to reside/receive care at the place. In that case, the reviewer must refer the case to an AMCP. But there is no requirement for a review if an AMCP pre-authorised and the person still objects. Presumably in this scenario the appropriate person/IMCA would challenge the authorisation via MCA s.21ZA.
33. Note therefore that the cared-for person is not given a legal right to request a review themselves. Instead they must hope that either a person with an interest reasonably requests one, or the reviewer becomes aware of a significant change or their objection. Only at the review stage must the reviewer consider the person’s wishes, feelings, views, beliefs and values. The responsible body must arrange for a copy of the authorisation record to be given to the cared-for person and others and accessible information about the safeguards must be provided.
34. Disappointingly, the Act retains the status quo with the MHA 1983. It rejects the Commission’s proposal for hospitals, whereby if the purpose of admission was physical health care, the NHS body would authorise the DoL under the Commission’s scheme. Whereas if the purpose was mental health care, the MHA would be used. In legal terms, this had the benefit of simplicity and would more effectively close the Bournewood gap. Instead, the confusion as to whether LPS or the MHA ought to be used in mental health wards is set to continue, at least until the MHA is amended.
Challenging authorisations35. Significantly, the letter confirms that non-means tested legal aid will be available for LPS which is very welcome. At present, it is only available for those detained in hospitals and care homes, with legal aid elsewhere being means-tested. In future, wherever the person is being deprived of liberty, they will not experience the current injustice arising from the legal aid provisions.
36. What is not clear is whether there must be a review before a MCA s.21ZA challenge in the Court of Protection is brought. Presumably, like the current Part 8 process, it will not be a legal obstacle because LPS reviews will not comply with the person’s rights under Article 5(4) which require access to a court.
What’s missing?37. Notable by its absence in the authorisation conditions is any reference to best interests. No-one independent is required to check the decision made on behalf of P to enter into arrangements giving rise to their detention. It is worth recalling that the policy aim behind the decision in Cheshire West was to ensure that vulnerable people get independent periodic checks on whether the arrangements made for them are in their best interests. And, according to Neary, the current independent best interests assessment “should be seen as a cornerstone of the protection that the DOL safeguards offer to people facing deprivation of liberty if they are to be effective as safeguards at all”. The Act therefore fails to achieve that aim. Also, according to G v. E at para 64, “the justification of detention in a case under the 2005 Act is not a medical decision but a decision for the court, to be made in the best interests of the person whom it is sought to detain”.
38. DoLS conditions appear to have gone. Under DoLS, hospital/care home managers must comply with DoLS conditions otherwise they have no defence to liability. And conditions can make a significant difference to P’s life and happiness. But all hope is not lost as there may be scope within the Act to address this, if only when an AMCP is involved. The Act says that AMCPs can “take any other action, so far as it appears appropriate and practicable to the Approved Mental Capacity Professional to do so” to determine whether the authorisation criteria are met. What that action could be is not clear. But this broad wording could potentially encompass the equivalent of DoLS conditions and recommendations. And an authorisation could be withheld without compliance with any such action. But there is a lack of detail in the Act.
39. Also absent is the other half of the Commission’s proposal to amend the core of the MCA. For example, the need to positively “ascertain” – not just consider – P’s wishes and feelings etc and give “particular weight” to them does not feature in the Act. According to the letter, the government believes that “a non-legislative approach can drive the behaviour and cultural change needed and we will work with the sector to further spread and support improved practice”. If improvement is not secured, then it will consider legislative change. Not amending the MCA’s core is an opportunity missed in terms of moving towards better CRPD compliance.
40. Absent too are the Commission’s proposed limitations to the defence to liability. In essence, the Commission’s approach would have required more in the way of evidence where significant Article 8 issues were at stake. According to the letter, health and care workers “should already record these decisions in care and treatment records”. The requirement would “merely generate extra paperwork at the expense of providing direct care”. Article 8 engagement and decision-recording will therefore be left to the Code which is most disappointing. Experience shows that such recording often does not take place adequately, or at all.
41. Also absent from LPS is the no refusals requirement for welfare LPAs, deputies and advance decisions to refuse treatment. The reason given is that these matters are already covered by the MCA in s.6(6) and 26. Rather than having regulations to strengthen supported decision-making as proposed by the Commission, the government again resorts to addressing this in the Code to bolster the second principle of the Act.
Watered Down Protection42. It was an entirely foreseeable consequence of the Cheshire West decision. Without significant investment, relabelling a vast proportion of the disabled population as ‘deprived’ of their liberty would result in a race to the bottom. A search for the irreducible minimum that domestic law can get away with without breaching the European Convention. For all its faults, there can be no denying that DoLS provides weighty safeguards. Indeed, greater safeguards than the bare bones of Article 5. Whereas in future, more people look set to receive less protection.
43. Depriving liberty is a serious step in anyone’s life and calls for a corresponding intensity of scrutiny. To do otherwise would devalue the precious currency of liberty. We must always remember what the law is doing on the ground. It is authorising one citizen to detain another. And that carries risks. Risk of social isolation, institutionalisation, loss of independence and employment, restricted contact with the outside world, and the potential undermining of self-esteem and dignity. Such legislative power that derives from being authorised to detain another must be robustly counterbalanced by fair and proper safeguards. Otherwise safeguards designed to prevent abuse may unintentionally become the cause of it. However, but for the intervention in the House of Lords, LPS could have been worse. You should have seen the original version!