‘Son of DOLS’ – summary and some initial thoughts from the 39 Essex Chambers Mental Capacity Report editors

Acting considerably more quickly than many had expected to give effect to its commitment to legislate to act upon Law Commission’s Mental Capacity and Deprivation of Liberty report, the Government has introduced the Mental Capacity Amendment Bill.

This is a rather different Bill to that attached in draft to the Law Commission’s report.   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) have been stripped out, along with such elements as the codification of the concept of ‘advance consent.’ Instead, the Bill is narrowly focused on a variant of the Law Commission’s Liberty Protection Safeguards (‘LPS’).   The Explanatory Notes, from which some of what follows is drawn, do not give an explanation for why this course been taken; the Impact Assessment says that “the Law Commission also proposed making some wider amendments to the Mental Capacity Act which we have decide not to legislate for at this point, as we think there are other effective levers to deliver improvement in these areas.”  We have no doubt that exactly what these levers may be and how effective they are will be probed further at second reading in the House of Lords on 16 July.

We set out the key features of the Bill below, along with some points where it differs from the Law Commission proposals. Not least because Alex is incapable of providing a detached view, we will leave consideration of its broad merits (or demerits) for others at this stage; we would, though, welcome any thoughts that people may wish to contribute in advance of our next report in September; and many may wish to see Lucy Series’ initial observations here and here.  The 39 Essex Chambers Court of Protection team are also working on further opportunities both to update people and to feed into the Parliamentary process; watch this space for more news.

The commentary here is presented on the basis that the Bill would be made law exactly as it stands.

Definition of deprivation of liberty

There is no statutory definition of deprivation of liberty, so the definition remains that contained in Article 5 ECHR, as interpreted, in this context, by the Supreme Court in Cheshire West.

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 gives authority to take steps to deprive a person of their liberty in three circumstances:

  1. where a decision relevant to whether there is authority to deprive the person of liberty is being sought from the Court of Protection;
  2. where steps are being taken (either by a responsible body or a care home manager) to obtain authorisation under Schedule AA1 (replacing the concept of urgent authorisations under DOLS); or
  3. 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).

New Schedule AA1

This will replace DOLS with a new scheme which will be called LPS (although this name is not on the face of the Bill).

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. In a change to the Law Commission’s proposals, the LPS will only apply 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). The responsible body will be:

  1. The “hospital manager” where the arrangements are carried out mainly in a hospital;
  2. A CCG or Local Health Board in the case of arrangements carried out through NHS continuing health care (but not mainly in a hospital);
  3. A local authority in all other cases, including where care is arranged by the local authority, and where care is provided to people paying for their own care (self-funders).

Before a responsible body can authorise the arrangements, it must be satisfied that three authorisation conditions are met:

  1. the person who is the subject of the arrangements lacks the capacity to consent to the arrangements;
  2. the person is of unsound mind; and
  3. the arrangements are necessary and proportionate. 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.

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 a person with the suitable experience and knowledge. It may well be that this a matter addressed in the Code of Practice.

The responsible body (or, as below the care home) must also carry out consultation with the person [we presume, although this not express on the face of the Bill] 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[1] to determine whether it is reasonable for the responsible body to conclude that the authorisation conditions are met. In cases where the person is objecting to the proposed arrangements, 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.

One major difference to the Law Commission proposals is what happens where arrangements are wholly or partly carried out in a care home. The general effect of the relevant paragraph (13) of Schedule AA1 is that the care home manager must arrange the relevant assessments and take the other necessary steps before an authorisation can be given by the responsible body.

Once an authorisation has been given, there are a number of safeguards put in place for the person. These include regular reviews of the authorisation by the responsible body or care home, and the right to challenge the authorisation before the Court of Protection (under a new s.21ZA). Although the Bill is silent on this, we would anticipate that such challenges would attract non-means-tested legal aid as s.21A challenges do at present.

From the outset of the process of authorisation under the Schedule to the point when the authorisation comes to an end, the Explanatory Notes provide that the person is to be represented and supported either by an “appropriate person” or an IMCA.[2]   The actual wording of the Bill is rather narrower, providing that where the person has capacity to consent to being represented by an IMCA, the person must make a request, or where they lack the capacity to consent, the responsible body must be satisfied that being represented and supported by an IMCA would be in the person’s best interests.   The Explanatory Notes suggest, but again, the Bill does not on its face provide, that an IMCA must be appointed unless there is an appropriate person who would be suitable to represent and support the person, consents to being appointed and is not engaged in providing care or treatment to the person in a professional role.  There are also circumstances in which the appropriate person must themselves be provided with an IMCA.

Authorisations can be varied where (for instance) the responsible body changes because the location of the arrangements change. They can also be renewed, in the first instance for 1 year, and thereafter for periods of up to 3 years.

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 – if this possible – in an 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.[3] But 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.

One final difference to the Law Commission Bill worth noting at this stage is that this Bill does not introduce a tort of deprivation of liberty actionable against a private care provider. In light of the continued distinction between false imprisonment and deprivation of liberty identified by the Court of Appeal in Jollah, discussed in the Wider Context report, it would appear that it will remain the case that a self-funder who does not meet the (tighter) test for false imprisonment would have no direct recourse against the care provider where steps are not taken to ensure that arrangements are authorised.

Next steps

Second Reading of the Bill is in the House of Lords on 16 July. We do not anticipate that Royal Assent would be granted before early next year, and, given that a transition period will be required before the DOLS can be replaced by the LPS, it is likely that the amended Act would not be fully in force until 2020 at the earliest, and potentially 2021.

[1] The concept of ‘pre-authorisation review’ is essentially the same as that of ‘independent review’ proposed by the Law Commission.

[2] Section 39A-D MCA 2005 will be repealed, as these advocacy provisions are tied to DOLS.

[3] Unless the person falls within the ‘learning disability’ exception, at which point the LPS could be used.

[This is taken from the 39 Essex Chambers July Mental Capacity Report. It represents an essentially neutral summary at this stage of the Bill.  Individual editors are likely to have different takes on the Bill as it stands; their views may well evolve if/when the Bill evolves; nothing here is intended to tie their hands as regards expressing individual opinions at any point!]

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