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Deprivation of liberty – your chance to change the law

On 7th July 2015 the Law Commission published its Consultation Paper on Mental Capacity and Deprivation of Liberty which will lead to a scrapping of the current deprivation of liberty safeguards (DoLS) system. Stuart Marchant and Emma Timmons explain the key proposals put forward and how you can influence the changing law.

The deprivation of liberty safeguards (DoLS) were established with the purpose of protecting people who are lacking in mental capacity and need to be deprived of liberty in order to receive appropriate care and treatment in hospitals and care homes. In practice, the DoLS provide an administrative process via the Court of Protection for authorising deprivations of liberty.

Since it came into force in 2009, the DoLS system has been heavily criticised for its technical and cumbersome nature, its one-size-fits-all approach and was even described by the House of Lords committee as not ‘fit-for-purpose’. In 2014, the definition of deprivation of liberty was widened in the Supreme Court decision of P v Cheshire West and Chester Council and P v Surrey County Council [2014]. This has placed an increased burden on local authorities and health and social care practitioners; it has resulted in an influx of cases to the Court of Protection and has been criticised as being a huge drain on resources. Given the complex nature of this area, it is reported that care providers are reliant on their local authority to identify potential deprivations of liberty amongst residents and it is likely that many current care arrangements across England and Wales equate to invalid deprivations of liberty.

This July, following a request from the Government, the Law Commission has released its consultation paper proposing to replace DoLS with a system called ‘Protective Care’. The Law Commission states that it seeks to achieve better, more appropriate outcomes for people with care and support needs and reduce unnecessary burdens on local councils and the NHS.

The Commission is seeking the views of care providers, lawyers and any person with experience of the current system on this proposal. It is truly recommended that all readers take this opportunity to consider the proposals and respond to the Law Commission with any comments, recommendations or criticisms so as to ensure that the draft legislation put to Parliament in 2017 is fair and effective.

The new process – Protective Care

The Law Commission has proposed a new system, known as Protective Care, which will have a wider scope than DoLS. The overarching system of Protective Care will comprise three different schemes specifically tailored to different care settings and the level of care/treatment being received. The consultation paper proposes that the nature of the safeguards provided should differ according to the setting.

  1. Supportive Care

The proposed Supportive Care scheme will apply to persons living in care homes, supported living and shared lives accomodation who lack capacity to consent to their living arrangements. It is intended to act as a preventative safeguard for persons who are not yet subject to restrictive or intrusive care but might require such care in the future.

Under Supportive Care, local authorities will be required to keep individuals under review and to include records of capacity and best interests assessments within care plans. Providers will also be required to be clearer about the basis on which decisions about care and treatment are made. Where it appears to a local authority that a person may be eligible for supportive care, the local authority would be required to ensure that an appropriate assessment has taken place.

The Consultation proposes that required safeguards under Supportive Care should not place too onerous a burden on providers or local authorities as in most cases, the local authority will just need to link existing reviews (under the new Care Act) and incorporate capacity assessments within the existing assessment process

  1. Restrictive Care

The proposed Restrictive Care system is intended to be the direct replacement for the current DoLS system. However, instead of focusing on whether a person has been, or is likely, to be deprived of their liberty, it will focus on the level of care being proposed or delivered.

In order to be eligible for Restrictive Care, a person must:

  • Be receiving, or be likely to receive, restrictive or intrusive care in a non-hospital setting; and
  • The person must be lacking capacity to consent to such treatment (as a result of an impairment of, or a disturbance in the functioning of, the mind or brain).

The consultation proposes restrictive care and treatment be identified by a non-exhaustive list which includes any of the following:

  • Continuous or complete supervision and control.
  • The person is not free to leave.
  • The person is either not allowed, unaccompanied, to leave the premises in which placed or is unable by reason of physical impairment to leave those premises.
  • The person’s actions are controlled by physical force, use of restraints or administering of medication.
  • Any care and treatment that the person objects to.
  • Significant restrictions over the person’s diet, clothing or contact with, or access to, the community and relatives, carers or friends.

The Law Commission has proposed the creation of an Approved Mental Capacity Professional (AMCP). Under the Law Commission’s proposals, AMCPs would be able to authorise individual care plans and place conditions on the provision of care and treatment. Like Approved Mental Health Professionals under the Mental Health Act 1983, AMCPs will act as independent decision-makers on behalf of the local authority and will possess overarching responsibility for assessments but will have the option to assign restrictive care and treatment assessments to a professional already involved with the case.

At present, it is proposed that ‘serious medical treatment’ cases should still be decided by the Court of Protection but the consultation seeks views on whether decisions regarding ‘significant welfare issues’ where there is a major disagreement should also be required to be decided by the Court of Protection.

The Law Commission is also proposing that appeals should no longer be heard centrally by the Court of Protection but locally, by a specialist tribunal, which includes medical and mental health practitioners, as well as ‘lay representation’, which could include service users.

  1. Hospital Care

The Hospital Care system is intended to provide protection to those persons lacking capacity that are receiving treatment for physical disorders in a hospital setting, where the treatment amounts to, or may amount to, a deprivation of liberty in the next 28 days.

It is proposed that a registered medical practitioner will need to certify that the proposed treatment, amounting to a deprivation of liberty, is in the patient’s best interests and is proportionate to any risk of harm. The hospital will appoint a responsible clinician to oversee and manage the patient’s care plan. A patient could only be deprived of their liberty for up to 28 days. After 28 days, an AMCP will be required to make an assessment. They can authorise a further deprivation of liberty for up to 12 months.

This is a potentially significant burden placed upon medical practitioners and training will be required to enable them to fulfil this responsibility effectively. The approval process will need to be carefully designed and monitored by the NHS body to ensure that this responsibility is discharged effectively, which is likely to increase the burden upon acute trusts even further, when previously the responsibility lay with the local authority.

Mental Health Act interface

It is proposed that the Protective Care scheme will not be used to authorise the detention of persons lacking capacity that require treatment for a mental disorder. Instead, the Mental Health Act will be amended to deal with such situations. Incapacitated, compliant patients in circumstances amounting to a deprivation of liberty will fall within a new mechanism under the Mental Health Act, designed to deal with such circumstances.

Incapacitated, non-compliant patients requiring treatment for a mental disorder will continue to fall within the existing provisions of the Mental Health Act. This legislative assertion of the primacy of the Mental Health Act over the Mental Capacity Act will greatly simplify this notoriously complex area of law.

Protective legal framework

The consultation introduces several suggestions for protective legal framework to adjudicate the Protective Care scheme, key of which is the establishment of a First Tier Tribunal to review cases under the Restrictive Care and treatment scheme. In our view, the establishment of a First Tier Tribunal to deal with this new scheme is a welcome change and would hopefully alleviate some of the delays in the Court of Protection and increase capacity for it to deal with more complex cases.

Opinion

There’s no doubt that DoLS is a system that is not fit-for-purpose and needs to be replaced. The introduction of the Law Society’s guidance on Identifying a deprivation of liberty: a practical guide provides some help and is required-reading under the present system.

The Law Commission’s new proposals expand considerably on the DoLS. On the positive side of the balance, by removing the bureaucracy of the DoLS assessment and approval process and making the system work across all care settings, including supported living and extra care, the system should be simplified and universal. If implemented well, this could achieve the correct balance between the rights of individual service users in line with the Care Act 2014 and a streamlined approach for care providers and local authorities.

However, by introducing a new regulatory framework which further formalises the care of all people lacking mental capacity, the system will bring greater monitoring by the local authority and regulatory oversight by the Care Quality Commission which could result, if not implemented carefully, in a significant additional burden on care providers.

The practical interface for providers, with individual social workers with increased powers of approval and monitoring, may cause some who have existing challenging relationships with social work professionals to have cause for concern; is this too much power for an individual?

How to influence the new law

Those who have felt the impact of DoLS should make the most of this opportunity to feed into the

Law Commission consultation. The consultation runs until 2nd November 2015 with plans to publish recommendations in 2016. It is urged that you read the consultation document and respond directly with your views to tim.spencer-lane@lawcommission.gsi.gov

Stuart Marchant is a Partner and Emma Timmons is a Solicitor at Bevan Brittan LLP.
stuart.marchant@bevanbrittan.com emma.timmons@bevanbrittan.com @BevanBrittanLLP

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