[This post has been updated to be current as at November 2020, and will be further updated in due course]. The Mental Capacity (Amendment) Act 2019 (MC(A)A) received Royal Assent on 16 May 2019. When comes into force it will sweep away the (mostly unloved) DoLS regime and replace it with the Liberty Protection Safeguards (‘LPS’).
We do not yet have regulations, or the Code of Practice that will be required before the Act can come into force, but they will be added here in due course. In September 2020, in the second of its LPS newsletters, the DHSC set out its provisional timetable towards implementation of the LPS as follows:
The background to the MC(A)A is well-known, but in short represents the response, primarily, to the widening by the Supreme Court in Cheshire West in March 2014 of the conventionally understood scope of the meaning of deprivation of liberty. This has meant both substantial increases in the numbers of applications in settings to which DoLS applies (i.e. care homes and hospitals) as well as an understanding that there are many in settings to which DoLS do not apply who need authorisation of their circumstances, currently only (in general) achievable by an application to the Court of Protection. There were other drivers, including the criticism of the legislation itself by the House of Lords in its post-legislative scrutiny report upon the MCA 2005 (summarised here in one of my very first posts on this website), and the Law Commission took it upon itself to look more broadly than simply DoLS when asked to undertake the project to reform the law in this area.
This is a rather different MC(A)A to the Bill attached in draft to the Law Commission’s Mental Capacity and Deprivation of Liberty report. Key differences include:
- In particular, all the wider elements of that Bill (e.g. securing greater weight in best interests decision-making for the person’s wishes and feelings and greater safeguards in relation to steps constituting a serious interference with a person’s Article 8 ECHR rights) were been stripped out. I have made some observations about this here, and would just add to them that it is in the review of the MCA Code of Practice currently underway going to be an interesting exercise to see how far it is possible to turn ‘good practice’ into obligations with actual teeth.
- The Law Commission’s proposal to allow advance consent to confinement was also not taken forward, although interestingly at Committee Stage in the Lords, Lord O’Shaughnessy reiterated the Government’s view that it is, in fact, possible to give such advance consent in the context of palliative care. Subsequent to that stage, but not referred to subsequently in debates, the independent Review of the MHA 1983 has recommended a consultation as to whether it should be introduced in relation to psychiatric admissions: see here at pp 81-83).
- The Government did not take forward the Law Commission’s proposal to introduce a new tort of unlawful deprivation of liberty actionable against private care providers. The Government’s view is that “a remedy could be sought against the public authority responsible for the deprivation,” and that there are already mechanisms to hold private care providers to account: “[t]here is the criminal offence of false imprisonment, as well as the existing law of false imprisonment for civil claims. So people can already bring legal action against private care providers.” This is true, but the tort of false imprisonment does not, in fact, map directly onto the concept of unlawful deprivation of liberty, especially in a situation where the person (because of their cognitive impairments) is unaware that they could seek to leave. It is likely that in due course it will be necessary for a court to give an expansive interpretation of “the public authority responsible for the deprivation” to enable a claim to be brought against a public body which did not but should have taken steps to discharge the state’s positive obligation under Article 5 ECHR to secure the right to liberty of a vulnerable individual detained by a private care home or hospital.
The amendments – an overview
What follows is an overview of the amendments that will be introduced to the MCA in due course when the MC(A)A comes into force.
At one stage, it appeared that a a final difference to the Law Commission’s draft Bill was that there was to be intended be a statutory definition of deprivation of liberty (in new s.4ZA), the Law Commission having shied away from giving such a definition. The statutory definition appeared on the scene at the Commons stage, introduced by the Government. The Government’s definition was rejected by the Lords, who proposed a counter-definition. The Government’s compromise proposal – no statutory definition (as at present) but guidance to be given in the LPS Code of Practice (to be reviewed regularly) – was agreed unopposed by the Commons on 2 April, and by the Lords on 24 April, although with a strong attack from Baroness Murphy on the “copping out” by the House of Lords by failing to produce a statutory definition. It remains to be seen precisely:
(a) how the Code of Practice to the LPS seeks to address the definition in practice;
(b) how the Code fares in the courts in due course;
(c) whether the courts show any appetite in due course to explore further the concept of ‘valid consent’ so as to exclude from the concept of deprivation of liberty a person such as MIG (an idea which appeared to the Joint Committee on Human Rights to have merit); and
(d) what view the Committee on the Rights of Persons with Disabilities make of the position in due course (as to which see the report published by the Special Rapporteur on the Rights of Persons with Disabilities discussed here).
Interim/emergency deprivation of liberty
Section 4B MCA will be amended so as to provide express authority for a person to take steps to deprive another person of their liberty if four conditions are met. Broadly speaking, section 4B will authority to take steps to deprive a person of their liberty in three circumstances:
- where a decision relevant to whether there is authority to deprive the person of liberty is being sought from the Court of Protection;
- where steps are being taken to obtain authorisation under Schedule AA1 (replacing the concept of urgent authorisations under DOLS); or
- in an emergency (i.e. solving the problem discussed at paragraphs 45-50 of our guidance note on deprivation of liberty in the hospital setting).
In all cases, the person doing the depriving will have reasonably to believe that the other lacks capacity to consent to the steps being taken, and the steps must be necessary in order to give life-sustaining treatment or prevent a serious deterioration in the person’s condition.
It is perhaps important to note in relation to (2) (which will most likely be known as ‘interim authorisation’) that the duty to appoint an advocate/appropriate person under Part 5 of Schedule AA1 applies to the responsible body at all times “while arrangements are being authorised or are being proposed.” It is not immediately obvious from here that the duty would apply during the assessment process of arrangements that have, in fact, already been implemented. This had been the approach that the Law Commission had taken, as a guarantee that reliance would not be placed on s.4B to detain someone indefinitely without completion of assessment, and it would appear that the Government’s intention is that Schedule AA1 does, in fact, provide for this. No doubt this is a matter that will be addressed in the Code of Practice – even if it is clear that the Code cannot impose obligations that cannot be spelled out either from the (amended) Act, common law, or the ECHR (see NHS Trust v Y).
New Schedule AA1
Schedule AA1 provides for the new administrative scheme for the authorisation of arrangements enabling care or treatment of a person who lacks capacity to consent to the arrangements, which give rise to a deprivation of that person’s liberty. The scheme will apply in relation to all those aged 16 and above (the Bill as introduced only applied to those over 18, but the position changed during the course of its passage; the Supreme Court confirmed in September 2019 that the concept of deprivation of liberty applies to 16/17 year olds in exactly the same way as it does to those aged 18 and above).
Under Schedule AA1, a responsible body will be able to authorise arrangements giving rise to a deprivation of a person’s liberty in any setting (or in more than one setting). In broad terms, the responsible body will be:
- The “hospital manager” where the arrangements are carried out mainly in an NHS hospital;
- A CCG or Local Health Board in the case of arrangements carried out through NHS continuing health care (but not mainly in a hospital). It should be noted that this provision does not apply where the funding of a person’s arrangements is majority funded by a CCG/local Health Board: the arrangements must in fact be funded through continuing health care. This also does not apply to those under 18, as the NHS continuing health care does not apply to those under 18. ;
- A local authority in all other cases, where care is arranged by the local authority, where care is provided to people paying for their own care (self-funders) and where the arrangements are carried out mainly in an independent hospital. This last provision was introduced by way of Government amendment to the Bill. It should be noted that in relation to independent hospitals, unless the person is already having care needs met by a local authority (which would remain the responsible body), the responsible body will in other cases be the local authority for the place where the hospital is located (rather than, as under DoLS, the local authority for the area where the person is ordinarily resident). an independent hospital, for these purposes, includes not only independent psychiatric hospitals, but also independent physical health hospitals and (as they are charitable) most hospices.
Before a responsible body can authorise the arrangements, it must be satisfied that three authorisation conditions are met, on the basis of determinations made on assessments:
- the person who is the subject of the arrangements lacks the capacity to consent to the arrangements;
- the person has a mental disorder; and
- 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. Note here that, in a difference to the Law Commission proposals, there is no reference to the necessity and proportionality being judged either by reference to the risk of harm to the person themselves or by the risk of harm to others, the Government not seeking to reverse an amendment introduced in Lords tightening the definition solely to risk of harm to the person themselves.
It is possible in relation to the first two to rely upon assessments carried out for an earlier authorisation for any other purpose where it is reasonable to do so. The “N&P” assessment needs to be carried out at the time. Precisely who can carry out the assessments will be set out in regulations, which are not yet published, but it is clear from statements made by the Government during the passage of the Bill through Parliament that, for instance, the scope of those who could carry out the medical assessment of mental disorder will be widened from psychiatrists.
A further difference to the Law Commission proposals is that the Bill does not on its face provide that at least two people have to carry out the assessments, so it would appear that all three could be carried out by one person with the suitable experience and knowledge. It may well be that this a matter addressed in the Code of Practice.
The responsible bodymust also carry out consultation with the person and a range of others, in particular to try to ascertain the cared-for person’s wishes or feelings in relation to the arrangements.
A person who is not involved in the day-to-day care of, or in providing any treatment to, the person must also carry out a pre-authorisation review to determine whether it is reasonable for the responsible body to conclude that the authorisation conditions are met. In cases where it is reasonable to believe that the person does not wish to live at or receive care and treatment in the place(s) in question, an Approved Mental Capacity Professional must carry out the pre-authorisation review. In that case, the Approved Mental Capacity Professional must determine whether the authorisation conditions are met, which might include (for instance) themselves assessing the person’s capacity. Whilst the shorthand ‘object’ may well often be used in respect of this category of people, ‘objection’ is not the test – the focus of attention must be on whether it is reasonable to believe that the person does not wish to live or receive care and treatment at the place(s). That could be shown through their words or actions; conversely, it might that a person’s words or actions do not, in fact, indicate that they do not wish to be at the place, but rather represent a manifestation of their condition. If a shorthand is required, I suggest ‘RTB’ so as to distinguish from the concept of ‘objection;’ it is likely that the Code will draw heavily upon the approach of the Court of Protection in Re RD  EWCOP 49 to outline how the person’s wishes are to be identified.
An AMCP must also carry out such a review if the arrangements provide for the person to receive care or treatment mainly in an independent hospital (whether or not the ‘RTB’ test applies) or where the case is referred by the responsible body and the AMCP accepts the referral.
The Government’s original proposals in this regard (departing from the position of the Law Commission) were significantly modified during the passage of the Bill through Parliament; originally, the proposal was that the care home manager was to arrange the relevant assessments and take the other necessary steps before an authorisation can be given by the responsible body. However, in the MC(A)A as finally enacted, the responsible body would in almost all cases) have to decide whether it, itself, should carry out the assessment process, or whether it should be led by the care home manager. Furthermore, the care home manager would not::
(1) be able to carry out assessments themselves (but could rely upon assessments in relation to mental capacity and mental disorder carried out by others, so long as the assessors did not have the ‘prescribed connection’ to be set down in regulations);
(2) be able to determine that the deprivation of liberty is necessary and proportionate.
In all care home cases, the responsible body would retain the duty to arrange for a pre-authorisation review.
In October 2020, the Government decided that it would not bring these provisions into force in April 2022. The minutes of the LPS Steering Group meeting on 13 October 2020 explain the position:
DHSC officials acknowledged that the role of the care home manage rin the MC(A)A2019 has always been contentious. They explained that the Government has heard representations from across the sector, both for and against this role, and considered its potential very carefully. The Government has decided not to implement this aspect of the MC(A)Ain England, for now. The relevant provisions in the Act will therefore not be commenced in April 2022.
The care home manager role was originally designed so that people who know the person and understand their wishes and feelings, could lead the LPS process, with the added benefit of reducing the burden on local authorities and CCGs. These aims are still valid, but the Government has decided that now is not the right time to introduce the role. Instead, the Government will focus on introducing all other aspects of the LPS; and working productively with stakeholders to ensure that implementation in 2022 is a success. Staff who care for the person every day and therefore know them best will, alongside the person’s family and friends, still play a vital role throughout the assessment process and during the consultation stages of the LPS process, in particular by helping decisions makers to establish the person’s wishes and feelings. The Government will keep the case for the role under review as it prepares for LPS, and as the system is implemented. The Government’s thinking on this issue will also be informed by responses to the public consultation on LPS, planned for 2021.
Once an authorisation has been given, there are a number of safeguards put in place for the person. These include a right to information to be provided as soon as practicable after the responsible body has authorised the arrangements, regular reviews of the authorisation by the responsible body, and the right to challenge the authorisation before the Court of Protection (under a new s.21ZA). Although the Bill is silent on this, the Government confirmed in the Lords that such challenges would attract non-means-tested legal aid as s.21A challenges do at present.
As noted above, the Government’s intention is that from the outset of the process of authorisation under the Schedule to the point when the authorisation comes to an end, the person is, as a general rule, to be represented and supported either by an “appropriate person” or an IMCA. The provisions are intended to work thus:
- The first port of call is for the responsible body to identify whether there is an appropriate person to represent and support the person who is not engaged in providing care or treatment to the person in a professional role. If the cared-for person has the capacity to consent, they must consent to the appointment of the appropriate person. If the cared-for person lacks capacity, then the responsible body must be satisfied that it would be in the cared-for person’s best interests to be represented and supported by that appropriate person. In both cases, the appropriate person must also agree to act;
- If there is no appropriate person, then, if the person has capacity to consent to being represented by an IMCA, the person must make a request for one, at which point the responsible body must take “all reasonable steps” to appoint an IMCA to represent and support them;
- If the person lacks the capacity to consent, the responsible body must take all reasonable steps to appoint an IMCA to represent and support them unless satisfied that this would not be in their best interests.
There are also circumstances in which the appropriate person must themselves be provided with an IMCA (on the same “all reasonable steps” basis).
The Code of Practice will no doubt flesh out what “all reasonable steps” means in the context of advocacy provision, as this is a change to the current provisions in relation to DoLS which are framed in mandatory terms. It is unclear how a person can be properly supported to exercise their rights under Article 5(4) ECHR to challenge their detention if they are ‘unbefriended’ and have no IMCA to support them.
Authorisations can be varied by the responsible body. This can include circumstances in which the responsible body has changed (for instance where a person previously being supported by a local authority whose needs have now increased such that they are eligible for CHC funding). On its face, the provisions would allow for a new responsible body to make any changes to an existing authorisation so long as (a) there is consultation; (b) they are reasonable and (c) there is a review (either in advance or as soon as practicable thereafter). However, the Government’s intention is that there are limits to what would otherwise be quite wide “portability” of authorisations, Baroness Blackwood for the Government stating at “ping-pong” stage in the Lords on 26 February that “[a]n authorisation can apply to different settings so that it can travel with a person but cannot be varied to apply to completely new settings once it has been made, as this would undermine Article 5.”
The authorisation record must include a programme of regular reviews, and there are also statutory triggers for reviews, including upon ‘reasonable request’ by a person with an interest in the arrangements.
In a change to DoLS, LPS authorisations can be renewed, in the first instance for 1 year, and thereafter for periods of up to 3 years. Renewal requires the responsible body to be satisfied that the authorisation conditions continue to be satisfied, consultation to be carried out and that it unlikely that there will be any significant change in the cared-for person’s condition during the renewal period which would affect whether those conditions are met.
The interface between the MHA and MCA
Part 7 of Schedule AA1 sets out the interface between the LPS and the Mental Health Act 1983. This is another major area of difference to the Law Commission Bill, which would (in general) have excluded the use of the LPS in the mental health setting. Part 7, by contrast, broadly speaking maintains the current position (and also maintains much of the drafting of Schedule 1A albeit in – if this possible – even more complicated form). The effect is that patients who are detained under the Mental Health Act 1983 or who are objecting to being in hospital for mental health treatment (or to that treatment), cannot be made subject to an authorisation under Schedule AA1.
In the community a person could be subject to an authorisation under Schedule AA1 and subject to Mental Health Act requirements, so long as the authorisation does not conflict with those requirements.
Note in this context that s.16A is being repealed: the Court of Protection would not therefore be bound by the same eligibility issues in the mental health setting which led to the complexities in the Dr A case. A close reading of the provisions also suggests that it would be possible for a patient detained under the MHA 1983 to have in place a parallel LPS authorisation where this related solely to arrangements to enable their physical healthcare and treatment where there is unrelated to the mental disorder which grounds their detention (an example would be where regular restraint is required to manage diabetes in a detained patient where they lack decision-making capacity in relation to diabetes management for reasons unrelated to the mental disorder warranting their detention under the MHA 1983).
The independent Review of the MHA 1983 reporting in December 2018 made recommendations in relation to the interface, at the request of the Government. These were predicated upon the LPS being capable of being used on the basis of the risk that the person posed to others. As noted above, the Bill does not allow for this, and it is not immediately obvious how the Review’s recommendations in this regard will be taken forward.
At the time of writing we await a clear timetable for implementation. Further steps that will be required before that can happen include:
(1) Preparation and enactment of the secondary legislation to flesh out (e.g.) the knowledge and experience required to conduct assessments; and
(2) The drafting and Parliamentary approval of a Code of Practice. This process is taking alongside the revision of the main MCA Code, with a view then to having one unified Code.
We do not yet have any secondary legislation available to address transitional arrangements, although it is obviously logical that current DoLS authorisations in place at the time that the new regime comes in will be ‘grandfathered’ to be treated as LPS authorisations. An interesting question will arise in relation to applications which have been submitted to supervisory bodies but not yet determined. The legal fiction is that all applications will have been determined within the current time-frames, such that, on one view, the transitional arrangements should not cater for these as that would, in essence, be to legislate for law-breaking. This was the approach taken in effect in the amendments to the Coroners and Justice Act 2009 in relation to ‘deaths under DoLS,’ which cater for the situation where a person has died subject to a DoLS authorisation, but left open the position where a person has died where an authorisation has been sought but not yet determined.
One suspects a more creative approach may be adopted in relation to outstanding applications, because otherwise, in fact, nothing will have been done to address the backlogs which formed such a feature of the Parliamentary debates. Absent legislating for ‘grandfathering’ of extant but underdetermined applications in each case, the (ex) managing authority would then have to submit a further application for LPS authorisation so as to benefit from the new protections of s.4B. There might be merit in this because each managing authority would have expressly to consider the (tighter) test under s.4B to determine whether deprivation of liberty pending completion of the assessment process is justified, but one suspects that local authorities will not welcome fresh paperwork in relation to each of the cohort of those whose applications they have yet to determine and where they now (for whatever reason) considered to be the responsible body.
 Nerdy footnote. As with DoLS, the name ‘Liberty Protection Safeguards’ does not, in fact, appear in the Act, but is the name that has been used throughout. Whether you call it LPS or LiPS is up to you (but as a co-author of the name at Law Commission, I’d really rather you didn’t call it the latter).
 See here, in particular, paragraph 15(d) of Schedule AA1 and the cross-reference to requirements under paragraphs 39 and 40 in relation to the appointment of advocates/appropriate persons “aris[ing] in relation to the arrangements before they are authorised” as a pre-condition for the grant of an LPS authorisation. The Explanatory Notes to the Bill also proceed on the basis that the duty arises at the start of the assessment process.
 The concept of ‘pre-authorisation review’ is essentially the same as that of ‘independent review’ proposed by the Law Commission.
 The exception is in relation to those aged 16-17 as the provisions in relation to care home arrangements do not apply to them.
 Section 39A-D MCA 2005 will be repealed, as these advocacy provisions are tied to DOLS.
 Unless the person falls within the ‘learning disability’ exception, at which point the LPS could be used.