Law Commission report: Mental capacity and deprivation of liberty
The Law Commission published its report and draft Bill on 13 March 2017 following a three year review of the Deprivation of Liberty Safeguards (DoLS) regime.
The review was requested by Government as local councils were seen struggling to cope with the administrative burden caused by the significant increase in deprivation of liberty cases following the Supreme Court’s landmark ‘Cheshire West’ ruling in March 2014.
The Law Commission proposals include draft legislation and a new system to authorise deprivation of liberty in a care placements for people who lack capacity and are of unsound mind.
The final report and draft Bill recommends that the DoLS be repealed with pressing urgency.
- A new scheme, Liberty Protection Safeguards (LPS), giving prominence to human rights under Articles 5 and 8 at the start of any planning for care or treatment arrangements.
- Authorisation by a ‘responsible body’, of arrangements that give rise to a deprivation of liberty. The local authority is therefore no longer responsible for all authorisations.
- Family members must be consulted before an authorisation takes place.
- Taking into account previous assessments, enabling authorisations to cover more than one setting and allowing renewals for those with long-term condition.
- Intended to reach a broader group of people than under the current DoLS regime the LPS is not restricted to placements in care homes and hospitals. Supported living and domestic settings would be included.
- An independent review of the authorisation process.
- Speedier reviews of the authorisation.
- To cover individuals from age 16. No longer necessary therefore to apply to the Court of Protection in the case of 16 and 17 year olds.
- Exclusion of mental health treatment from the LPS (but preserving ‘the learning disability exclusion’)
- The BIA role becomes an Approved Mental Capacity Professional (AMCP) role and there is no longer a requirement for a best interests assessment in every case. AMCPs will be concerned with more ‘serious’ cases where care arrangements are contrary to the person’s wishes.
- Amendment of the Coroners and Justice Act 2009 to provide that the duty to hold an inquest would not apply automatically to people subject to the LPS. Additional safeguards in place when a death is attributed to a lack of care.
- Under the LPS the right of legal challenge is to the Court of Protection. The Law Commission recommends that the Government should review this matter and consider whether a tribunal might be more effective.
The report urges the Government to review mental health law in England and Wales with a view to the possible introduction of mental capacity-based care and treatment for mental as well as physical disorders (‘fusion’).
A response from Government is awaited. It remains to be seen how much of what is proposed appears in any legislation.
It is likely to be several years before the usual pre-legislative scrutiny is complete and those practising in this area should continue to be aware of the provisions of the Mental Capacity Act and making that work in the meantime.
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This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.