I was contacted, again, by a health care professional who had been told with complete confidence that the new version of s.4B MCA 2005 included in the Mental Capacity (Amendment) Act 2019 was in force. This, in turn, meant that they had been told with complete confidence that it was possible to deprive someone of their liberty in an emergency where they lacked capacity to consent to the steps required to provide them with life-sustaining treatment, or to prevent a serious deterioration in their confidence, and to rely in so doing on the protections contained in s.4B.
If only that was the case.
When I was at the Law Commission working on the Mental Capacity and Deprivation of Liberty project, we recognised that there was a real gap in the law which led to professionals ‘freezing’ and – in extremis – to people dying. Section 4B as it stands only kicks in to provide protection “while a decision as respects any relevant issue is sought from the court” (and other conditions are met). In other words, as was put in Cardiff and Vale UHB v NN [2024] EWCOP 61 (T3), it “expressly authorises the deprivation of a person’s liberty for the purpose of giving a patient life-sustaining treatment or preventing a serious deterioration in their condition while court authorisation for the same is sought” (paragraph 20). Section 6 MCA 2005 provides protection in relation to restraint, but only where the steps taken do not cross the line to deprivation of liberty (a line which can be problematically difficult to identify, especially in high octane situations).
The Law Commission therefore proposed that s.4B be amended to provide a ‘standalone’ provision relating to emergency deprivation of liberty. A somewhat different form of that proposal appears in s.2 of the Mental Capacity (Amendment) Act 2019. However, that section is not in force (nor is any of the rest of the Act, which is primarily the vehicle for implementing the Liberty Protection Safeguards).
I can therefore be unusually categorical for a blog post of this nature:
You cannot rely upon s.4B to deprive someone of their liberty if you are not making an application to the Court of Protection.
If you would like to be able to do so, you need to persuade the Government to bring the 2019 Act into force but that is not a matter for me as a mere lawyer.
