In March, the Government published its response to the Law Commission’s Mental Capacity and Deprivation of Liberty report. Although the history of the Deprivation of Liberty saga is well-known and well-written about, a brief recital is necessary to place the Government’s response in context.
The Deprivation of Liberty Safeguards (DOLS) were introduced in 2007 to create a framework for the protection of vulnerable persons lacking capacity to decide about their care and treatment when that care and treatment may amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights.
Despite its fairly simple aim, the implementation and development of DOLS has proved to be increasingly confusing, expensive and overwhelming for all persons involved. In March 2014, the House of Lords Select Committee on the Mental Capacity Act 2005 (MCA) published a report, which concluded the DOLS were, ‘poorly drafted, overly complex and…sometimes used to oppress individuals’.
In light of this damning finding, the Select Committee stated, ‘the only appropriate recommendation…(was) to start again’, and called for ‘a comprehensive review’, which was subsequently commenced by the Law Commission.
In March 2017, the Law Commission published its final recommendations and a year later, in March 2018, the Government published its response to these recommendations.
Moving forward with DOLS replacement
So, four years into the DOLS replacement project, are we any closer to resolution? Is a simplification of the law imminent? The answer is yes, sort of, although much depends on the timetable of the Government’s Mental Health Act (MHA) review, which let’s face it, is not going to be straightforward.
In its response, the Government was clear that, ‘in principle…the DOLS system should be replaced as a matter of pressing urgency’ and that it would ‘legislate on this issue in due course’, when parliamentary business allows.
Indeed, the Government accepts 42 out of the 47 proposals put forward by the Law Commission. These involved replacing the DOLS with the Liberty Protection Safeguards (LPS), which will:
- Focus on the ‘arrangements’ of the cared-for person rather than their ‘deprivation’ or ‘detention’.
- Link the authorisation of arrangements amounting to a deprivation of liberty to the care planning process rather than requiring a formal application.
- Remove the role of the supervisory body, thereby easing pressure on local authorities.
- Link responsibility of authorisation to the responsible financial body, therefore making health bodies responsible in cases involving healthcare.
- Ensure the authorisation can be used flexibly to include different environments, obviating the need for separate applications if a cared-for person is moving between different environments.
- Require an Independent Mental Capacity Advocate to be appointed unless the cared-for person does not consent, or it is not in their best interests, or if the local authority determines there is an appropriate person to support and represent the individual.
- Require an independent review by a person within the responsible body.
- Require a referral of arrangements to an Approved Mental Capacity Professional if the cared-for person is objecting to their arrangements or if ‘harm to others’ was a significant consideration in authorisation.
- Apply to 16 and 17-year olds.
- Extend the statutory defence under Article 5 MCA to potential Article 8 interferences such as covert medication and contact with others provided there is a written record of decision-making.
However, applause is premature as the Government also confirmed it would not be rushing through legislation by stating that the proposals would need to be considered carefully and ‘ensure that the design of the new system fits with the conditions of the sector taking into account the future direction of health and social care’.
Furthermore, on a detailed reading of the Government’s comments, it becomes clear that substantial DOLS reform is unlikely to happen before the Government concludes its MHA review, for which recommendations are due to be published in Autumn of this year.
In particular, the Government does not currently accept the Law Commission’s proposals regarding the interface of the MHA and the MCA. Notoriously a difficult and vague area of law, the Law Commission’s proposals sought to eliminate the complex interface by removing the situation where someone could find themselves falling outside of both schemes and allowing the MCA and MHA to be used concurrently, if necessary.
The Government held off commenting on these proposals, instead stating that it is more appropriate for the MHA and MCA interface to be considered as part of the independent review into the MHA due to conclude later this year.
This is partly understandable. The law surrounding the interface is so complex and opaque, it is poorly understood by both practitioners and the judiciary alike, as recognised in numerous cases. It, therefore, makes sense that, in order to ensure the replacement legislation deals sufficiently with these complexities, consideration is also given to whether any amendments can be made to the MHA.
Furthermore, one could see how this issue is peripheral in the sense that the major changes outlined above could be implemented in the meantime while leaving the existing law surrounding the interface intact.
Perhaps it is this idea that has got everyone excited as other commentators appear to be optimistic regarding the timetable for reform. This optimism has also been fuelled by the publication of the Interim Report of the MHA Review, published on 1st May 2018, which stated that consideration would be given to whether there are recommendations that can be made prior to the end of the MHA Review to solve the urgent DOLS problems identified to date, although no further information was provided.
Replacing best interests test
However, a more important detail in the Government’s proposals has been largely overlooked; namely the replacement of the best interests test when the responsible body is deciding whether arrangements amounting to a deprivation of liberty should be authorised.
The Law Commission’s proposals seek to reduce the number of assessments that a responsible body must carry out in authorising a DOL from six to three. The three key assessments that will be required under the LPS are:
(i) a mental capacity assessment,
(ii) a mental health assessment, and
(iii) an assessment of whether the arrangements are necessary and proportionate.
Notably, there is no requirement in the proposed third assessment to consider best interests, therefore removing the best interests test from the authorisation process as this is currently required under DOLS.
Instead, the LPS set out that regard must be had to the likelihood of harm to the person if the arrangements were not in place and the seriousness of that harm; and the likelihood of harm to other individuals if arrangements were not in place and the seriousness of that harm.
The Government raises trepidation with this approach however, repeating concerns received from stakeholders that the mirroring of the explicit requirement in the MHA to consider harm to others ‘can be contrary to the person-centred empowering ethos of the Mental Capacity Act’.
The Government, therefore, confirms it would be more appropriate for this issue to be considered as part of the MHA Review.
Given that the necessary and proportionate test is crucial, under the proposals, for a responsible body knowing when arrangements amounting to a deprivation of liberty can be authorised, it is hard to see how replacement legislation can proceed without it.
Although the Government may have been able to work round the interface issue by keeping the status quo in the meantime, it is difficult to see how it could proceed without clarity on the tests to be undertaken by the responsible body.
Although the Interim Report of the MHA Review does state that consideration will be given to whether recommendations can be made prior to the end of the Review regarding DOLS, no further information, nor timeframe is provided. In our view, given the importance of the issues needing to be addressed and the centrality of the necessary and proportionate assessment to the DOLS process, it is unlikely (although it would be a pleasant surprise) if these proposals were addressed before the MHA Review concludes in the Autumn.
This is disappointing, not least because uncertainty continues to prevail. Although the independent MHA review is due to provide final recommendations in Autumn, it is possible that this could be delayed and even if it is on time, is it really likely that the Government will take swift action, given Brexit will be fast approaching and probably consuming much of the Government’s focus?
Furthermore, one must question whether this delay is to give further consideration to the idea of ‘fusion law’; one legal framework covering mental health and mental capacity law. The Law Commission’s proposals stated that ‘consultation events were often dominated by this subject, and it also featured prominently in written responses from mental health stakeholder groups’. It is also described in the Interim Report of the MHA Review as a ‘long-term’ consideration.
The Law Commission concluded that ‘fusion law does represent, potentially, the future direction for mental health law reform in England and Wales’ and ‘strongly urge[d] the UK Government to review mental health law in England and Wales with a view to the introduction of mental capacity-based care and treatment for mental disorders.’ Indeed, it should not be forgotten that Northern Ireland introduced fusion law in 2016.
In conclusion, although the Government appears committed to replacing the DOLS framework, we are unlikely to have a clear timetable on this, nor indeed confirmation of whether the Law Commission’s proposals will form the basis of new legislation or whether it will be fusion law, until after the recommendations of the MHA Review are published in Autumn.
However, given the unfortunate timing of these recommendations in the six months prior to Brexit and the potential huge task at hand if fusion law is the way forward, expectations need to be managed as to how quickly recommendations will be transformed into concrete proposed legislation.
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