Mental Capacity and Deprivation of Liberty

On 7 July 2015 the Law Commission published its Consultation Paper on Mental Capacity and Deprivation of Liberty. In this alert we explain the key proposals put forward. 

Background

The deprivation of liberty safeguards (“DoLS”) established an administrative process for authorising deprivations of liberty in a hospital or care home. In recent years, the DoLS system has been heavily criticised and increasingly viewed to be unfit for purpose. Furthermore, following the widening of the definition of deprivation of liberty in the Supreme Court decision of Cheshire West, an increase in the number of DoLS cases* has left the regime struggling to cope.

The Law Commission in its consultation paper proposes replacing DoLS with a system called 'protective care', which has a wider scope than DoLS. We summarise the Law Commission's key proposals below. 

We urge as many of our clients as possible to respond to the consultation as this may be the only opportunity for some time to make sensible and much needed changes to the current system and the input of those who will use the system will be invaluable.  The consultation closes on 2 November 2015.  We provide the links to the summary and full papers here:
http://www.lawcom.gov.uk/wp-content/uploads/2015/07/cp222_mental_capacity_summary.pdf
http://www.lawcom.gov.uk/wp-content/uploads/2015/07/cp222_mental_capacity.pdf

Key Proposals

1.   The Deprivation of Liberty Safeguards should be replaced by a new overarching system called “protective care”.

The proposed protective care system will have a wider scope than DoLS; it will apply not only to hospitals and care homes but will extend to supported living and shared lives accommodation, as well as care and treatment offered in a domestic setting. 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.

2.   Supportive Care

The proposed Supportive Care scheme will apply to persons living in care homes, supported living and shared lives accommodation 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 persons under review and to include records of capacity and best interests assessments within care plans. Public bodies will also be required to be clearer about the basis on which decisions about care and treatment are made.

Potential Implications for Practice: The Consultation proposes that required safeguards under supportive care should not place too onerous burden on local authorities as in most cases, the Local Authority will just need to link existing reviews (under the Care Act) and incorporate capacity assessments within the existing assessment process.

3.   Restrictive Care

The proposed restrictive care system is intended to be the direct replacement for the current DoLS system. However, instead of focussing 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 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 as a non-exhaustive list to include 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; and
• Significant restrictions over the person's diet, clothing or contact with or access to the community and relatives, carers or friends.

If a person is deemed eligible for restrictive care, they will be allocated an 'Approved Mental Capacity Professional' (AMCP). Either the AMCP or a professional designated by the AMCP will undertake a best interest assessment regarding the proposed care. Like Approved Mental Health Professionals, 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. 

It should be noted that cases involving “serious medical treatment” would continue to be decided directly by the Court of Protection.
 

Potential Implications for Practice: The new framework may lead to confusion over what is meant by restrictive treatment and the list above may develop over time given that this is a non-exhaustive list.  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.  In our view, this should be a matter of discretion of the local authority, NHS body or family concerned as opposed to being a requirement.

4.   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 in the next 28 days a deprivation of liberty.

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.

Potential Implications for Practice: 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.

5.   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. 

Potential Implications for Practice: 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.

6.   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.

Potential Implications for Practice: 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

7.   Summary of proposals

For ease of reference please find below a table of the key features of the proposed scheme.  In short, these proposals expand considerably on the DoLS and will impose significant additional burden on local authorities and the NHS.  However, if implemented it could potentially significantly reduce legal costs of taking cases to the Court of Protection, whilst also providing safeguards for those in supportive care who are currently not formally protected in a similar way.  We will publish further, more detailed articles on the proposals in due course. 

 

	PROTECTIVE CARE
	SUPPORTIVE CARE	RESTRICTIVE CARE	HOSPITAL CARE
Purpose	Preventative safeguard against future deprivations of liberty	The direct replacement of the DoLS system but moves the focus away from a deprivation of liberty to the level of care being proposed or provided.	A bespoke system to ensure compliance where care and treatment is being provided for physical disorders.
Care Setting	Care supported living and shared lives accommodation (either currently living in or being considered for)	Any non-hospital care setting including domestic	Hospitals and Palliative Care
Level of Care	Not yet considered restrictive or intrusive	Proposed or received care must be restrictive and / or intrusive.	Treatment or care must amount to a deprivation of liberty.
Capacity	Persons must lack capacity to consent to treatment.	Persons must lack capacity to consent to treatment and the lack of capacity must be the result of an impairment of, or a disturbance in the functioning of, the mind or brain.	Persons must lack capacity to consent to treatment.
Safeguards	Local authorities will be required to keep each situation under review and to include records of capacity and best interests assessments within care plans. Public bodies will be required to be clearer about the basis on which decisions about care and treatment are made.	AMCP would be allocated to the case. The AMCP would either undertake a best interest test themselves regarding the proposed restrictive care and treatment or appoint another professional involved in the case to undertake this assessment. If the care / treatment involves a deprivation of liberty, this must be expressly authorised in the care plan as being in the persons best interests.	The 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. A patient can 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. The hospital will appoint a responsible clinician to oversee and manage the patients care plan.

* The number of DoLS applications surged from 11,300 in 2013-14 to 113,300 in 2014-15.